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 CLARENDON LAW SERIES

Law in Modern Society Policies and Perceptions of Insurance

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WILLIAM LUCY MICHAEL SPENCE
 INTERNATIONAL LAW

VAUGHAN LOWE
Chichele Professor of Public International Law at the University of
Oxford, and Fellow of All Souls College

1
 3
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 Preface

This book began its life as a successor to James Brierly’s Law of Nations.
That excellent book provided an introduction to international law of the
kind that might be helpful for a student to read in the vacation before start-
ing to study the subject, or for an interested lay reader. Largely shorn of
footnotes and technical details, it offered an overview of the scope and
principles of international law. I hope that this text does much the same.
I have largely eliminated footnote references that can be found quickly
and easily with Google. More readers are likely to be within reach of the
Internet than within reach of a good law library. In particular, I have
excised the references to the scores of websites maintained by the various
international organizations and treaty secretariats mentioned in this
book. Those websites are, however, invaluable to the novice and the
specialist alike for their gentle introductions to the relevant field and their
up-to-date information.
I must thank John Louth of OUP for his support for this and a huge
range of other international law publishing projects. The text has been
read in whole or in part by Sally Lowe, Jenny Hassan, and Guy Goodwin-
Gill. I am grateful to them for drawing my attention to the distinction
between material that it is enjoyable to write and material that it is enjoy-
able to read. Above all I am grateful to Sally for pointing out that my treat-
ment of the subject of comparative advantage appears to ignore the fact
that efficiency in work and production is not the only, nor the best, index
of human happiness.
AVL
All Souls College, Oxford
 May 
 Contents

Abbreviations xi
Table of Cases xiii
Table of International Conventions and Treaties xvii

. Introduction and Overview: The Ambit of

International Law 
. Aim of the book 
. The scope and nature of international law 
. The changing scope of international law 
. The emergence of international organizations 
. The emergence of new international actors 
. Why do people comply with international law? 
. Why should people comply with international law? 
. How international law is invoked and applied 
. The domestic analogy 
. How International Law is Made 
. Customary international law 
.. The component elements of customary
international law 
.. Opinio juris: acceptance of a practice as law 
.. The time element 
.. What counts as State practice 
.. Collections of State practice 
.. How rules are discerned 
.. Some aspects of opinio juris 
.. Local and regional custom 
.. Persistent objection 
.. Jus cogens 
.. Institutions 
.. How customary law changes 
. Treaties 
.. Making treaties 
.. Reservations to treaties 
viii Contents
.. Treaty interpretation 
.. Invalid treaties 
.. Release from treaty obligations 
.. Amending treaties 
.. Treaties and customary international law 
.. Treaty collections 
. Other sources of law 
.. General principles of law 
.. Unilateral acts of States 
.. The role of international organizations in
law-making 
.. International law and non-legal sources of norms 
. The Principles of the International Legal System 
. The prohibition on the threat or use of force 
. The duty to settle disputes peacefully 
. The duty of non-intervention 
. The duty to co-operate 
. The principle of equal rights and self-determination of
peoples 
. The principle of sovereign equality of States 
. The principle of good faith 
. The nature of the Declaration on Principles of
International Law 
. State responsibility 
. Implementing State responsibility 
. Personality and the scope of application of
international law 
. International law in domestic courts 
. International law in international tribunals 
. Diplomatic protection of nationals 
. International law outside tribunals 
. States 
. Introduction: territories, borders, and States 
. State territory 
. Intertemporal law and the modes of acquiring territory 
. Prescription 
. Occupied territories, decolonization, and uti possidetis 
. Governing without sovereignty 
. Borders and frontiers 
. The State 
 Contents ix
. The population 
. Nationality 
. Statelessness 
. The territory 
. The government 
. Independence: the capacity to enter into relations
with the other States 
. Legitimacy 
. Recognition: where principle and expediency meet 
. Recognition and Statehood in domestic law 
. State succession 
. Inside the State 
. State jurisdiction 
. Jurisdiction over territory 
. Maritime jurisdiction 
. Jurisdiction over nationals 
. Protective jurisdiction 
. Universal jurisdiction 
. Other extra-territorial extensions of jurisdiction 
. Treaty-based jurisdiction 
. Competing and conflicting jurisdiction 
. Extradition and legal co-operation 
. Resolving jurisdictional conflicts 
. Enforcing jurisdiction 
. Immunities 
. Other limitations on the exercise of a State’s
jurisdiction 
. The Global Economy 
. Introduction 
. The creation of the Bretton Woods system, the GATT,
and the Havana Conference 
. The World Bank 
. The IDA and the IFC 
. Foreign investments, the ICSID, and MIGA 
. The IMF and the international monetary system 
. The international trading system 
. The GATT and the WTO 
. Commodity and energy agreements 
. Regional economic arrangements 
. Final observations 
x Contents
. The Global Environment 
. The environment and the limitations of law 
. Alternative approaches 
. Transboundary harm 
. Trusteeship and the community resources approach 
. Changing attitudes to the environment 
. The Stockholm Declaration  
. UNCED, the Rio Declaration, and Agenda ,  
. Techniques 
.. Prohibitions 
.. Setting targets 
.. Information and informed consent 
.. Environmental impact assessment 
.. Licensing 
.. Monitoring and reporting 
.. Safe procedures and cleaning up 
.. Liability 
. The broader view 
. The Use of Force 
. Introduction 
. The use of force in international law 
. The Charter system 
. Uses of force authorized by the United Nations 
. Self-defence 
. Humanitarian intervention 
. The law of armed conflict 
. War and crime 
. Postscript 

Index 
 Abbreviations

[The table includes only abbreviations used more than once. Other abbre-
viations are listed in the Index.]

BIT Bilateral investment protection treaty

CCAMLR Conservation of Antarctic Marine Living Resources
CFCs chlorofluorocarbons
CITES Convention on International Trade in Endangered
Species of Wild Fauna and Flora
DSU (WTO) Dispute Settlement Understanding
ECGD Export Credit Guarantee Department
ECOSOC (UN) Economic and Social Council
ECOWAS Economic Community of West African States
ECSC European Coal and Steel Community
EEC European Economic Community
EEZ Exclusive Economic Zone
EU European Union
FAO Food and Agriculture Organization
FCN Friendship, Commerce and Navigation
GA (UN) General Assembly
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
IAEA International Atomic Energy Agency
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICSID International Centre for the Settlement of
Investment Disputes
ILC International Law Commission
ILDC International Law in Domestic Courts
ILM International Legal Materials
ILO International Labour Organization
ILR International Law Reports
IMF International Monetary Fund
IMO International Maritime Organization
ITLOS International Tribunal for the Law of the Sea
ITU International Telecommunications Union
xii Abbreviations
MFN Most Favoured Nation
NAFTA North American Free Trade Agreement
NATO North Atlantic Treaty Organization
NGO Non-governmental organization
PCIJ Permanent Court of International Justice
SDR (IMF) Special Drawing Rights
UN United Nations
UNCED UN Conference on Environment and Development
UNCLOS III Third UN Conference on the Law of the Sea
UNCTAD UN Conference on Trade and Development
UNEP United Nations Environment Programme
UNRIAA UN Reports of International Arbitral Awards
UNTS UN Treaty Series
WHO World Health Organization
WTO World Trade Organization
 Table of Cases

Adams v Adams [] P ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . 

Air Services Agreement of  March ,  ILR  . . . . . . . . . . . –
Aloeboetoe () Inter-Am Ct HR , OAS/ser L/V/III  doc  . . . . 
Anglo-French Continental Shelf (Cmnd , );  ILR  . . . . . . , 
Anglo-Iranian Oil Company, ICJ Reports , ;  ILR  . . . . . 
Anglo-Norwegian Fisheries, ICJ Reports , ;  ILR  . . . . , 
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), ICJ Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Armed Activities on the Territory of the Congo (New Application,
), ICJ Reports  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Arrest Warrant of  April  (Democratic Republic of the
Congo v Belgium), ICJ Reports , ;  ILM  . . . . . . . . . . . 
Asylum, ICJ Reports , ;  ILR . . . . . . . . . . . . . . . . . . . . . . . . 

Barcelona Traction, Light and Power Company Limited

(Second Phase) (Belgium v Spain), ICJ Reports , ;
 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –
Behring Sea Fur Seal (), JB Moore, International
Arbitrations, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –, , , 
Brind, ex p []  AC ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . 

Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No ) []

AC ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Certain Criminal Proceedings in France (Republic of the Congo v
France) ICJ Reports ,  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Chorzów Factory (Germany v Poland) (Merits) () PCIJ
Series A No ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
CMS Gas Transmission Co v Argentine Republic (ICSID Case No
ARB//)  ILM  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

East Timor (Portugal v Australia) ICJ Reports , ;

 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 

Fisheries Jurisdiction (United Kingdom v Iceland) (Merits),

ICJ Reports , ;  ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
xiv Table of Cases
Foster and Elam v Neilson ()  US  . . . . . . . . . . . . . . . . . . . . . 
Free Zones of Upper Savoy and the District of Gex (France v
Switzerland) () PCIJ Series A/B No ;  ILR . . . . . . . . . . . 
Frontier Dispute (Burkina Faso/Mali) ICJ Reports , ;
 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Fuji v California  P d  ();  P d  ();
 ILR  (). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Gabĉíkovo-Nagymaros Dam (Hungary v Slovakia)

ICJ Reports , ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . , , 
Greece v UK () PCIJ Reports Series A No  . . . . . . . . . . . . . . . . . 
Gur Corp v Trust Bank of Africa []  All ER ;  ILR  . . . . 

Hartford Fire Insurance Co. v California ()  S Ct ;

 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Hesperides Hotels v Aegean Holidays Ltd [] QB ;
 ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Hostages: United States Diplomatic and Consular Staff in
Tehran (USA v Iran) ICJ Reports, ;  ILR  . . . . . . . . . . . 
Huntington v Attrill [] AC  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Interhandel (Switzerland v United States) (Preliminary

Objections) ICJ Reports , ;  ILR  . . . . . . . . . . . . . . . . . . 
Island of Palmas ()  RIAA ;  ILR  . . . . . . . . . . . . . . . . . . . . . 

Jones v Saudi Arabia [] UKHL  . . . . . . . . . . . . . . . . . . . . . . . . . . 

Lac Lanoux (France v Spain) ()  ILR  . . . . . . . . . . . . . . . . . . 

Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ Reports , ;  ILM . . . . . , 
Lena Goldfields (),  ILR , ; ()  ICLQ  . . . . . . . . . 
LG&E v Argentine Republic (ICSID Case No ARB//). . . . . . . . . . 
Libyan Arab Foreign Bank v Bankers Trust Co. []  Lloyds
Rep ; [] QB  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Mavrommatis Palestine Concessions (Greece v Great Britain)

() PCIJ Ser A No ;  ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Minors Oposa v Secretary of the Department of the Environment and
Natural Resources ()  ILM . . . . . . . . . . . . . . . . . . . . . . . . . . 
MOX Plant (Ireland v UK) () <http://www.pca-cpa.org/> . . . 
 Table of Cases xv
Neer ()  RIAA ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Nicaragua v United States (Military and Paramilitary
Activities in and against Nicaragua) ICJ Reports ,
;  ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , , ,
, , , 
North Sea Continental Shelf, ICJ Reports, ; 
ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , , 
Norwegian Loans, ICJ Reports , ;  ILR  . . . . . . . . . . . . . . . 
Nottebohm (Liechenstein v Guatemala) (Second phase),
ICJ Reports , ;  ILR  . . . . . . . . . . . . . . . . . . . . . , , 
Nuclear Tests, ICJ Reports , ;  ILR  . . . . . . . . . . , , 
Nuclear Weapons (WHO) (Legality of the Use by a State of
Nuclear Weapons in Armed Conflict. Request for an Advisory
Opinion by the United Nations General Assembly),
ICJ Reports , ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . , 
Nuclear Weapons (General Assembly) (Legality of the Threat or
Use of Nuclear Weapons. Request for an Advisory Opinion by the
United Nations General Assembly), ICJ Reports , ;
 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 

Oil Platforms (United States v Iran) ICJ Reports , . . . . . . . . . 

The Paquette Habana ()  US  . . . . . . . . . . . . . . . . . . . . . . . . 

R v Bow Street Metropolitan Stipendiary Magistrate, ex p

Pinochet Ugarte (No ) []  AC ;  ILR  . . . . . . , –
R v Jones (Margaret) [] UKHL . . . . . . . . . . . . . . . . . . . . . . . . . . 
Rainbow Warrior (New Zealand v France)  ILR  . . . . . . . . . . . . . 
Rayner (JH) (Mincing Lane) Ltd v Department of Trade and
Industry []  AC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Reparations for injuries suffered in the service of the
United Nations, ICJ Reports , ;  ILR . . . . . . , , 
Republic of Somalia v Woodhouse Drake & Carey Suisse
SA [] QB ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Right of Passage over Indian Territory (Portugal v India),
ICJ Reports , ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Rio Tinto Zinc Corporation v Westinghouse Electric
Corporation [] AC ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . 

Salimoff & Co. v Standard Oil Co. of New York () 
NY ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
xvi Table of Cases
Sosa v Alvarez-Machain ()  US . . . . . . . . . . . . . . . . . . . . . . 
Southern Bluefin Tuna (Australia, Japan, New Zealand v Japan)
(Request for Provisional Measures)  ILR . . . . . . . . . . . . . . . . . 

Tadic (Case IT-–-AR) (Jurisdiction) (Appeals Chamber) ()

 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Trail Smelter (United States v Canada)  ILR  . . . . . . . . . . . . . . –
Trendtex Trading Corporation v Central Bank of Nigeria []
 QB ;  ILR  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , 

US v Gonzalez ()  F d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

US v Mexico ()  RIAA  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Wall in Occupied Palestinian Territory, ICJ Reports , ;

 ILM  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Western Sahara (Advisory Opinion)  ICJ Reports ;
 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
 Table of International
Conventions and Treaties

Abidjan Convention for Co-operation in the Protection and

Development of the Marine and Coastal Environment of the West
and Central African Region  (Abidjan,  March ) . . . –
African Charter on Human and People’s Rights  (Nairobi,
 June ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Air Services Agreement  (London,  August ; UKTS 
(); Cmd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
American Convention on Human Rights  (San Jose,
 November ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
American Declaration of the Rights of Man  (Bogota,
 April ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Antarctic Treaty  (Washington,  December ; UKTS 
(); Cmd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
ANZUS Treaty (San Francisco,  September ) . . . . . . . . . . . 
Arab Charter on Human Rights  (Cairo,  September ) . . . . 
Argentina–US FCN Treaty  (San Jose,  July ) . . . . . . . . . . 
Arhus Convention on Access to Information  (Aarhus,
 June ; UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . 
Aruba Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Augsburg, Peace of () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Barcelona Convention and Statute on the Regime of Navigable

Waterways of International Concern  (Barcelona,
 April ; UKTS  (); Cmd ) . . . . . . . . . . . . . . . . . 
Basel Convention on the Control of Transboundary Hazardous
Wastes and Their Disposal  (Basel,  March ;
UKTS  (); Cm ). . . . . . . . . . . . . . . . . . . . . . , , 
Beijing Treaty  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Beijing Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Canada–US Boundary Waters Treaty  (Washington,

 January ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Cartagena Convention for the Protection and Development of the
Marine Environment of the Wider Caribbean Region 
xviii International Conventions and Treaties
(Cartegena de Indias,  March ; Misc  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Cartagena Protocol on Biosafety  (Montreal,  January ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Charter of Economic Rights and Duties of States  (UN Gen Ass
Resolution,
 December ; A/Res//) . . . . . . . . . . . . . . . . . . . . . . . 
Charter of Paris for a New Europe  (Paris,
 November ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Chicago Convention on International Civil Aviation  (Chicago,
 December ; UKTS  (); Cmd ) . . . . . . . . . . , 
Continental Shelf Convention  (Geneva,  April ;
UKTS  (); Cmnd ) . . . . . . . . . . . . . . . . . . . . , , , 
Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , 
Convention Against Corruption  (New York,  October ;
Misc  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on Early Notification of a Nuclear Accident 
(Vienna,  September ; UKTS  (); Cm ) . . . . . . 
Convention for the Pacific Settlement of International
Disputes  (The Hague,  July ;
UKTS  (); Cd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention for the Protection of the Marine Environment
of the North-east Atlantic (OSPAR)  (Paris,
 September ; Misc  (); Cm ) . . . . . . . . . . . . . . . 
Convention for the Protection of the World Cultural and Natural
Heritage  (Paris,  November ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , –
Convention on Assistance in Case of a Nuclear Accident or
Radiological Emergency  (Vienna,  September ; UKTS
 (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on Biodiversity  (Rio de Janeiro,  June ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on Civil Liability for Nuclear Damage  (Vienna,
 May ; Misc  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . 
Convention on Combating Bribery  (Paris,  December ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on Conditions for Registration of Ships  (Geneva,
 February ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on Conventional Weapons  (Geneva,  October ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
 International Conventions and Treaties xix
Convention on Fishing and the Conservation of Living Resources
of the High Seas  (Geneva,  April ;
UKTS  (); Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . , 
Convention on International Trade in Endangered Species 
(Washington,  March ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on Long-range Transboundary Air Pollution 
(Geneva,  November ; Misc  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , 
Convention on Marine Pollution from Ships (MARPOL) 
(London,  November ; Misc  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , 
Convention on Nuclear Terrorism  (New York,  April )
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on the Elimination of All Forms of Discrimination
Against Women  (New York,  December ;
Misc  (); Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Convention on the Law of the Non-navigational Uses of International
Watercourses  (New York,  May ) . . . . . . . . . . . . . . . . 
Convention on the Law of the Sea  (Montego Bay,  December
; UKTS  (); Cm ). . . . . . . . . . , , , , , ,
, , , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on the Protection of the Alps (Salzburg,
 November ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on the Protection of the Carpathians  (Kyiv,
 May ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on the Reduction of Statelessness  (New York,
 August ; UKTS  (); Cmnd ) . . . . . . . . . . . . . 
Convention on the Rights of the Child  (New York,  November
; UKTS  (); Cm ). . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention on the Settlement of Investment Disputes Between States
and Nationals of Other States  (ICSID Convention)
(Washington,  March ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Convention Relating to the Status of Stateless Persons 
(New York,  September; UKTS  (); Cmnd ) . . . . . 
Conventional Armed Forces in Europe Treaty  (Paris,
 November ; UKTS  (); Cm ) . . . . . . . . . . . . . 
xx International Conventions and Treaties
Energy Charter Treaty  (The Hague,  December ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Espoo Convention on Environmental Impact Assessment
(Espoo,  February ; UKTS  (); Cm ) . . . 
European Charter for Regional or Minority Languages 
(Strasbourg,  November ; UKTS  ();
Cm ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
European Convention for the Protection of National
Minorities  (Strasbourg,  February ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
European Convention on Human Rights  (Rome,  November
; UKTS  (); Cmd ) . . . . . . . , –, , , 
European Convention on the Suppression of Terrorism 
(Strasbourg,  January ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Food Aid Convention  (London,  April ;

UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Framework Convention on Climate Change  (New York,
 May ; UKTS  (); Cm ). . . . . . . . . . . . . . . . , 

General Agreement on Tariffs and Trade,  (Geneva,  October

; UKTS  (); Cm ). . . . . . . . . . . . . . . . . . . . . . , 
Art I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art XIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , 
Art XX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art XXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art XXIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art XXIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art XXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art XXV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art XXXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art XXXVI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
General Treaty for the Renunciation of War (Briand–Kellogg Pact)
 (Paris,  August ; UKTS  ();
Cmd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
 International Conventions and Treaties xxi
Geneva Conventions on the Laws of War  (Geneva,
 August ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , 
Additional Protocols . . . . . . . . . . . . . . . . . . . . . . . . . , –, , 
Genocide Convention  (New York,  December ;
UKTS  (); Cmnd ) . . . . . . . . . . . . . . . . . . . –, , 
Grains Trade Convention  (London,  December ;
Misc  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Hague Convention for the Suppression of Unlawful Seizure of

Aircraft  (The Hague,  December ;
UKTS  (); Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . –
Hague Convention Respecting the Laws and Customs of War
on Land  (The Hague,  October ;
UKTS  (); Cd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes  (Helsinki,
 March ; Misc  (); Cm ) . . . . . . . . . . . . . . . . . . . . 
Helsinki Final Act  (Helsinki,  August ) . . . . . . . . . . . . . . . . 

Intermediate-Range Nuclear Forces Treaty  (Washington,

 December ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
International Convention on Civil Liability for Oil Pollution
Damage  ( Convention as amended by
 Protocol) (London,  November ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
International Convention on Oil Pollution Preparedness,
Response and Co-operation  (London,
 November ; UKTS  (); Cm ) . . . . . . . . . , 
International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families
 (New York,  December ). . . . . . . . . . . . . . . . . . . . . . . . 
International Covenant on Civil and Political Rights  (New York,
 December ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –., 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
International Covenant on Economic, Social and Cultural
Rights  (New York,  Dec ; UKTS  ();
Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
xxii International Conventions and Treaties
International Radiotelegraph Convention  (Berlin,
 November ; UKTS  (); Cd ) . . . . . . . . . . . . . . . . 
International Sanitary Convention  (Venice,
 January ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Iran-USA Treaty of Amity  (Tehran,  August ) . . . . . . . . . 

Kuala Lumpur Agreement on the Conservation of Nature and

Natural Resources  (Kuala Lumpur,  July ) . . . . . . . . . 
Kuwait Regional Convention for Co-operation on the Protection
of the Marine Environment from Pollution  (Kuwait,
 April ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Kyoto Protocol  (Kyoto,  December ; UKTS  ();
Cm ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 

League of Nations Covenant  (Versailles,  June ;

UKTS  (); Cmd ). . . . . . . . . . . . . . . . . . . . . . . . . . , 

Montevideo Convention on Rights and Duties of States 

(Montevideo,  December ). . . . . . . . . . . . . . . . . . , , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation  (Montreal,
 September ; UKTS  (); Cmnd ) . . . . . . . . . . . 
Montreal Protocol on Substances the Deplete the Ozone
Layer  (Montreal,  September ;
UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Montreux Treaty  (Montreux,  Jul ; UKTS  ();
Cmd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –
Mutual Assistance Treaty (France/Turkey/UK) 
(Ankara,  November ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Nanjing Treaty  (Nanjing,  August ) . . . . . . . . . . . . . . , 

Netherlands–Saramaka Treaty  ( September ). . . . . . . . . . . 
Nicaragua–USA Treaty  (Managua,  January ) . . . . . . . . . 
Nuclear Non-Proliferation Treaty  (London, Moscow,
Washington,  July ; UKTS  (); Cmnd ) . . . . . . 
North American Free Trade Agreement (NAFTA) 
(Washington,  December ) . . . . . . . . . . . . . . . . . . . . . . . , , 
 International Conventions and Treaties xxiii
North Atlantic Treaty  (Washington,  April ; UKTS 
(); Cmnd )
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
North Pacific Fur Seal Treaties – (Washington,
 July ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –
Noumea Convention for the Protection of the Natural Resources
and Environment of the South Pacific Region 
(Noumea,  November ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Oslo Convention on Dumping at Sea  (Oslo,  February ;

UKTS  (); Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Paris Convention on Air Navigation  (Paris,  October ;

UKTS  (); Cmd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Paris Convention on the Prevention of Marine Pollution from
Land-Based Sources  (Paris,  June ;
UKTS  (); Cmnd ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Ramsar Convention  (Ramsar,  February ; UKTS 

(); Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Refugee Convention  (Geneva,  July ; UKTS  ();
Cmd ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade
 (Rotterdam,  September ; UKTS  (); Cm )
–

Saavedra–Lamas Treaty  (Rio de Janeiro,  October ). . . . . 

St-Germain Treaty  (St Germain-en-Laye,  September ;
UKTS  (); Cmd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Santiago Declaration  (Santiago,  August ) . . . . . . . . . . . . . . 
Schengen Agreement  (Schengen,  June ). . . . . . . . . . . . . . 
Statute of the International Court of Justice  (San Francisco,
 June ; UKTS  (); Cmd )
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , , , 
Art ()(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Statute of the International Criminal Court  (Rome,
 July ; UKTS  (); Cm ) . . . . . . . . . . . . . . . . . . . 
xxiv International Conventions and Treaties
Treaty on the Reduction and Limitation of Strategic Offensive
Arms  (Moscow,  July ) . . . . . . . . . . . . . . . . . . . . . . , 
Sulphur Protocol  (Helsinki,  July ) . . . . . . . . . . . . . . . . . . . . 
Tianjin Treaty  (Tianjin,  June ) . . . . . . . . . . . . . . . . . . . . . 
Tokyo Convention on Offences and Certain Other Acts Committed
on Board Aircraft  (Tokyo,  September ;
UKTS  (); Cmnd ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Tordesillas, Treaty of  (Tordesillas,  June ) . . . . . . . . . . . . . . 
Treaty Concerning the Permanent Neutrality and Operation of
the Panama Canal  (Washington,  September ;
UKTS  (); Cmnd ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Treaty on the Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies  (London, Moscow, Washington,
 January ; UKTS  (); Cmnd ). . . . . . . . . . . , 

UNCITRAL Model Law on Arbitration  ( June ) . . . . . . 

United Nations Charter  (San Francisco,  June ;
UKTS  (); Cmd ). . . . . . . . . . . . , , , , , ,
, , , –, 
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Universal Declaration of Human Rights  (UN Gen Ass
Resolution,  December ; A/RES/). . . . . . . . . . . . . , 
Utrecht, Treaty of () (Utrecht,  July )
Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Versailles Treaty  (Versailles,  June ; UKTS  ();

Cmd ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Vienna Convention for the Protection of the Ozone Layer 
(Vienna,  March ; UKTS  (); Cm ) . . . . . . . . . . . 
Vienna Convention on Consular Relations  . . . . . . . . . . . . . . , 
Vienna Convention on Diplomatic Relations  (Vienna,
 April ; UKTS  (); Cmnd ) . . . . . . . . . . . . , 
Art –Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
 International Conventions and Treaties xxv
Vienna Convention on the Law of Treaties  (Vienna,
 May ; UKTS  (); Cmnd ). . . . . . . . , , , ,
, , , 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art () . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Art  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Westphalia, Treaty of () (Munster,  October ) . . . . . . . . . . . . 

UK legislation

Anti-terrorism, Crime and Security Act  . . . . . . . . . . . . . . . . . . . . . 

s  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
s  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Foreign Compensation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
Importation Act  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
State Immunity Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 
Theft Act  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

US legislation

Alien Tort Act  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

 

Introduction and Overview: The Ambit

of International Law

.    

The world needs international law, because no State acting alone can
achieve its aims. International co-operation is necessary; and international
law is the framework within which international co-operation takes place.
The point was well made by a former British Foreign Secretary, Douglas
Hurd:
[N]ation states are . . . incompetent. Not one of them, not even the United States
as the single remaining super-power, can adequately provide for the needs that its
citizens now articulate. The extent of that incompetence has become sharply
clearer during this century. The inadequacies of national governments to provide
security, prosperity or a decent environment has brought into being a huge array
of international rules, conferences and institutions; the only answer to the puzzle
of the immortal but incompetent nation state is effective co-operation between
those states for all the purposes that lie beyond the reach of any one of them.
That passage suggests some of the matters with which international law
is concerned. The national security of each State depends upon an accept-
ance by other States of restrictions upon the right to use force to achieve
their aims. Those restrictions are given their definitive expression in
international law. National prosperity depends upon trade; and inter-
national trade is conducted within the rules that constitute the World
Trade Organization (WTO) trading system and regional systems such as
the North American Free Trade Agreement (NAFTA), the Southern
Common Market (MERCOSUR), and the Common Market for Eastern
and Southern Africa (COMESA). Factors that affect international com-
petitiveness, such as national health and safety legislation and minimum
employment standards, are also regulated as part of this broad scheme.
Pollution of the land, sea, and air is the subject of a large and growing
1
Douglas Hurd, The Search for Peace (London: Warner Books, ), p. .
 International Law
network of global and regional treaties. Fundamental human rights are
secured by multilateral treaty regimes in Africa, the Americas, and
Europe, and are supplemented by increasing numbers of agreements on
more specific matters such as the rights of children, minorities, and migrant
workers. Plant and animal diseases, and drugs, and scientific research are
the subject of international agreements. So, too, are transportation, banking,
arms control, educational exchanges, and extradition: the list, and the
scope of international law, is almost infinite. More will be said about these
subjects in the following pages.
The reference to the ‘huge array of international rules, conferences and
institutions’ suggests something of the processes by which the rules of
international law are made. Take for example the question of the environ-
ment. No State can prevent global warming by acting alone. It may impose
severe restrictions upon carbon dioxide emissions and engage in massive
tree-planting programmes; but if no other State is doing so, its efforts will
be practically pointless. Worse, the additional costs imposed on manufac-
turers and tax-payers as a result of those measures will tend to put that
State’s economy at a competitive disadvantage: the role of ecological
custodian comes at a real cost. Unless ‘greenness’ can be sold as a consumer
good (as many companies, making a virtue of necessity in the face of
environmental legislation, now seek to do) whatever international influ-
ence the State has as a competitor will begin to dwindle as businesses
abroad unencumbered by strict environmental constraints increase their
market shares. Unilateral action is at best ineffective and may be positively
counter-productive. In a perfect world, all States would impose the same
environmental regulations, at a level just sufficient to achieve the desired
safety of the environment. The environmental aims would be secured;
and no State would be at a competitive disadvantage as a result.
Co-operation is necessary; and co-operation needs a framework. In
order even to begin to attempt to co-operate, States must contact each
other and know who is competent to give binding undertakings that will
be respected by the government, the courts, and other public authorities
of the other State. They need to know how to indicate that a particular
agreement made by a State is formally binding, as a matter of legal obliga-
tion, and is not regarded simply as a matter of policy that can be varied
or abandoned at will by the other State. These matters are governed by
principles of diplomatic law and treaty law.
In order to negotiate an agreement on environmental controls, State
representatives need to discuss the issue. States may already have established
an international organization with competence in the field, under whose
auspices negotiations can take place. If not, States will have to convene a
 The Ambit of International Law 
conference. This is not easy. If a State representative visits, say, Brussels,
he or she may be threatened with arrest or with being sued in respect of
some wrong that was allegedly committed by the State that sent them. The
work of State representatives is greatly helped if they are assured that they
will not be subject to such distractions, and the advantages of such immun-
ity are generally thought to outweigh the disadvantages of closing off that
particular means of challenging the conduct of foreign States before courts
of law. Hence, international law provides for the immunity of diplomats
and other State representatives.
If an agreement on environmental controls is negotiated, it will be neces-
sary to decide how far States may, or must, apply the controls to polluting
activity. Certainly, States will be expected to apply it to everyone within
their borders, whether or not the people concerned—car owners, factory
owners, or whatever—are nationals of the State (and the determination
both of borders and of nationality are themselves questions of inter-
national law). But what of, say, foreign subsidiaries of companies based in
the State? May a company avoid pollution controls by shifting its manufac-
turing operations to another country, or may the State regulate its activities
even when they take place abroad? And what if the country where the
activities do take place has different rules for pollution control? These
questions of the extent of a State’s right to regulate conduct are questions
governed by the principles of international law concerning jurisdiction.
Suppose that the foreign country where the subsidiary’s operations are
located introduces draconian environmental laws that render either the sub-
sidiary’s, or even the parent company’s, operations commercially unviable—
a question that turns partly upon the way in which accounts may or must be
drawn up in the different countries and on the ways in which taxes are
imposed and taxes paid abroad are taken into account. Would the subsidiary
or the parent company have any remedy, and if so, how could it be obtained?
And suppose that some States that have become parties to the environmental
treaty impose lower environmental standards than those required by the
treaty, or adopt a lax approach to the enforcement of standards, so as to help
their domestic businesses: would other, more conscientious States Parties
have any remedy against the resulting inequities in the regulatory burden and
tilting of the competitive playing field?
The questions can be multiplied almost endlessly; and to almost all of
them international law provides an answer.
It will be apparent from that example that international law is con-
cerned with the actions and treatment of individuals, corporations, and
international organizations, as well as States; and is the concern of lawyers
advising all of them. Corporate lawyers, environmental campaigners, and
 International Law
governments alike will scrutinize the way in which national environmental
laws are drafted and imposed and measure them against the State’s inter-
national obligations—not only its obligations under environmental treaties
but also obligations concerning conditions upon which international trade
takes place, the treatment of foreign investments, non-discrimination, and
other matters. Indeed, no lawyers now starting in practice are likely to
avoid all contact with international law in their professional careers.
Human rights obligations arising from international instruments are now
a common ingredient of cases arising within the framework of adminis-
trative law and criminal law; family lawyers increasingly look to international
treaties and the national legislation that implements them for assistance
in matters such as child abduction and the collection of maintenance
payments; labour lawyers invoke international standards in cases concern-
ing working conditions; and commercial lawyers wade deep into the waters
of international trade law in advising their clients. Though sometimes
concealed by the overlay of municipal legislation, international law flows
throughout the whole of national law.
Little thought is given to the workings of international law until it ceases
to operate satisfactorily. When international law malfunctions or disap-
points the expectations of onlookers, trenchant questions are asked. Does
it matter if international law is violated? Is international law anything more
than a respectable cloak for the exercise of naked power, or an exercise in
utopian idealism? Are there right and wrong answers in international law,
or is it all a matter of interpretation? What can international law do?
I try to answer such questions in this short book. It is a book about inter-
national law, not a book of international law; and this is one reason why
I have abandoned the lapidary prose traditional in legal textbooks in favour
of a first-person narrative. I try to explain what international law does and
how the international legal system operates, but not to set out a compre-
hensive or systematic account of what the rules of international law are.
This approach was well described in the Preface to the first edition of the
book that is, in the genealogy of Oxford publishing on international law,
the ancestor of the present text, J.L. Brierly’s The Law of Nations, where
Brierly wrote that:
Any intelligent study of the problems of international relations must raise the
question of the role, if any, to be assigned in them to law. Unfortunately current

2
‘Municipal’ and ‘domestic’ are terms used by international lawyers to signify something
within the legal order of a single State, in contrast to something within the international, inter-
State legal order: for example, domestic courts in contrast to international courts; municipal
law, such as English or Scots or French law, in contrast to international law.
 The Ambit of International Law 
discussions of the matter too often assume that this question can be answered by
a priori methods, to the neglect of any serious examination either of the part that
law is actually playing in the relation of states today, or of the conditions upon
which an effective legal order in any society depends.
Brierly thought that some knowledge of the system as it is actually prac-
tised between States is necessary as a corrective both for exaggerated
hopes and for cynical indifference, and he tried to show that international
law ‘is neither a chimera nor a panacea, but just one institution among
others which we have at our disposal for the building up of a saner inter-
national order’. The need that Brierly identified is as urgent now as it was
when he wrote, almost eighty years ago.
The rest of this chapter consists of a brief outline of the scope and
nature of international law. The remaining pages of this book consist largely
of a gentle tour of the main areas in which international law is currently
active and of the principles upon which international law is built and the
methods used to build it.

.     

 
The central core of international law may be described as the body of rules
and principles that determine the rights and duties of States, primarily in
respect of their dealings with other States and the citizens of other States,
and that determine what is a State—which political entities, such as
Australia and Palestine and Quebec, count as States, and when and within
what geographical territory they exist.
It may seem odd to describe the core of international law, rather than
to define it. I have done so because definitions necessarily draw lines to
distinguish one thing from another; and that approach is inappropriate in
the case of international law. There is a penumbral area which can equally
well be classified as international law or as some other branch of the law.
Archetypal international law is concerned with the rights and duties of
States towards one another; but the principles, materials and techniques
of international law are applied much more widely.
For example, the powers and duties of international organizations are
governed by international law. Thus, while the Member States of the
European Union are bound by internal EU law in their dealings with one
another and with organs of the EU (such as the European Commission),

3
J.L. Brierly, The Law of Nations. An Introduction to the International Law of Peace
(Oxford: Oxford University Press, ), p. v.
 International Law
relations of other, non-member States with the EU are governed by inter-
national law. As a matter of EU law, competence over fisheries is a matter
for the EU and not for Member States: it is the EU that makes fishery
treaties under which EU vessels fish in the waters of non-Member States
and vice versa; and those treaties are governed by international law in the
same way as are treaties made between two States.
Similarly, human rights treaties and treaties providing for the protec-
tion of foreign investments limit the powers of States Parties in their deal-
ings with individuals and companies; and many such treaties give individuals
and companies the right to bring proceedings against a State that has
violated the treaty terms. To that extent, international law also encom-
passes dealings with individuals. But one might equally well regard the
right of an individual to bring a case against a State in, say, the European
Court of Justice, as an extension of the individual’s rights to sue that State
in the State’s own national courts, under some such process as judicial
review. There is no absolute line that sets the boundaries between inter-
national law and national laws; and some bodies of law and legal proced-
ures have characteristics of each.
What, then, are the particular characteristics of international law?
There are obvious differences in the material sources. International
lawyers are largely concerned with treaties and customary international
law, while municipal lawyers are largely concerned with statutes and
reports of court decisions. There are also differences of methodology.
National courts, mindful of their duty not to usurp the role of the law-
makers in the legislature, tend to adopt relatively inflexible and literal
interpretations of legislation: international tribunals tend to have a
more flexible and pragmatic approach, bending the interpretation of
the text to current conditions where circumstances seem to demand it.
But these differences are relatively minor. They are no greater than the
differences between common law systems based upon case-law and
legislation, such as English Law, civil law systems based upon comprehen-
sive Codes, such as French law, and customary law systems based upon
the application of customary rules, such as the customary courts in
Tanzania.
The crucial difference between international law and municipal laws is
one of fundamental principle. National laws are invariably based upon
some notion of sovereignty. National courts defer to national legislatures.
If a national law says that the government or anyone else has the right to do
a certain thing, the courts will not disagree. The legislature can do no
wrong. Even where, as in the United States, statutes may be struck down
because they are unconstitutional, the courts are still bound by the
 The Ambit of International Law 
Constitution, which is itself a national law. The fact that the exercise of
a right under national law may violate international law will not entitle
national courts to deny the existence of that right (unless national law itself
directs the courts to apply international law in certain circumstances, as do
the constitutions of Germany and The Netherlands for example).
This subordination of the courts to the legislature is at the heart of what
is meant when people assert the sovereignty of national parliaments. It
means that no-one can tell the State (or more accurately the rulers of the
State) what to do. That principle of sovereignty underpins national legal
systems: it answers the question, who’s in charge here? It affirms the right
of each State to be different, so that conduct that is lawful in one, such
as smoking cannabis or stoning someone to death, may be punishable as
a crime in another. National laws on matters such as credit, pornography,
blasphemy, gun control, employment terms, marriage and divorce, abor-
tion, drugs, taxation and social security, military service, and so on do much
to define the nature of a State. They are a significant part of what makes the
State, and the society within the State, different from its neighbours.
International law, on the other hand, proceeds from precisely the
opposite premise. It is based upon the principle that all States, whether
they like it or not, are subject to international law and must comply with it.
It may appear to be in this respect the antithesis of national sovereignty.
But that is an oversimplification. Far from suppressing national sover-
eignty, in the way in which EU law suppresses national sovereignty in
certain defined fields in order to secure the goals of economic and social
advancement, international law seeks to secure the conditions that allow
sovereign States to co-exist, and to enable each State to choose what kind
of society will exist within its borders.
International law does this by regulating relations between States. It is
a little like a global equivalent of the laws that allocate certain powers to
towns, counties, provinces, and other political subdivisions within a single
State—with the crucial difference that in international law there is no
equivalent of the central or federal government with rights to override the
will of the local and provincial governments. In more abstract terms, we
might say that international law governs the relationship between one
particular level of distinct political communities (by which I mean simply
social groups that are organized and impose rules made by the community
upon the members of that community, and usually upon visitors sojourning
within it). International law does not generally concern itself with relations
between provinces or towns or whatever. It leaves those questions to the
authorities within the State concerned. It concerns itself essentially with
relations between States.
 International Law
From the earliest recorded times when mankind was organized into
distinct tribal or political groups there was a body of rules that regulated
the conduct of affairs between different ‘countries’ and their sovereigns.
We still have many of the clay tablets upon which treaties were written in
Babylonia the best part of four thousand years ago. Extradition arrange-
ments were in place between Egyptian pharaohs and Hittite kings. In
ancient Greece and Rome and India, the exchange of envoys between
nations followed well-established rules, the violation of which could be a
justification for war. It seems likely that a form of international law arises
whenever groups begin to identify themselves as distinct from their
neighbours; that international law is as primitive and elemental a social
institution as law itself. One wonders whether it is not hard-wired into
human consciousness, a corollary of a view of the world which, linguis-
tically, divides actions in the patterns of verbs that distinguish between I,
we, and they. I, the individual; we, the tribe; they, the others. From these
primitive distinctions, which seem to be universal (or near universal),
emerge the basic legal conditions that characterize international law.
There is us; and there is them. We can be their friends, or their enemies.
If they fight someone else, we can be for them, against them, or keep out
of it altogether. We can, in international law terms, be at peace, at war, or
neutral. To find out which, we need to send envoys, representatives. Our
peace is sealed by treaties—the Latin word for allies, foederati, comes
straight from the word for treaties, foedera. Our wars are bounded by
rules. We fight because we have rights to uphold; and the morality that
justifies the end also constrains the means that we use to achieve it. Our
neutrality, which excuses us from involvement in the fights of our neigh-
bours, similarly limits what we may and may not do without being consid-
ered to have taken sides. And when peace exists, and we trade with one
another, we have rules that stipulate what rights and duties our traders
have in each other’s territory: how far they are subject to the criminal law
and so on.
International law is not a unified, manufactured system, imposed upon
the world of international or inter-communal relations. Nor, despite its
deep roots in basic forms of social organization, is its scope determined a
priori. The rules of international law cover whatever topics happen to have
been regarded as appropriate for legal solution on the international plane.
It is simply a formalized account of practices and principles which spring
spontaneously and inevitably from the coexistence of distinct communi-
ties or which result from conscious efforts of States to co-operate in deal-
ing with certain problems. From the earliest days those rules covered
matters such as the making of war and peace and alliances, diplomatic
 The Ambit of International Law 
exchanges, trade, and the return of fugitive offenders, and were initially
evident simply as the customary practices, the ‘way of doing things’ in the
field concerned.
Gradually these practices and principles were reduced to writing and
systematized, and the principles of the Law of Nations (as international law
used to be known) were set out in textbooks, often intermingled with
discussions of the principles of domestic government and right behaviour in
general. Some such texts are of great antiquity. Fragments are readily iden-
tifiable in the Old Testament. In the Book of Deuteronomy, for example,
there are clear rules on what armies are and are not permitted to do during
the belligerent occupation of enemy territory—rules which (as I explain in
Chapter ) are very close to those which apply today in situations such as the
occupation of Iraq by the United Kingdom and the United States and the
Israeli occupation of the West Bank and Gaza. The Arthashastra of Kautilya,
a magisterial treatise on statecraft written in India almost two thousand
years ago, and the Siyar of the eighth-century Hanafite jurist, Shaybani,
from what is now Iraq, are among the early classics.
It is often asserted that international law in its modern form dates from
the Treaty of Westphalia in , which is said to have ‘created’ the system
of modern nation-States. It is far from clear that this is so. The primacy of
territorial units as the basis of social organization was evident in the Peace
of Augsburg in , and the notion of sovereignty was developed by Jean
Bodin a little later in the sixteenth century. Either could be taken as indi-
cations of the emergence of a ‘new’ order of sovereign territorial States
within the increasingly fragile chrysalis of the Holy Roman Empire.
But there is another, more important, objection to the fixation with
Westphalia as the birth of international law. The ‘Westphalia’ thesis
focuses on the wrong issue. The strength and continuity of international
law flows not from its conceptual basis but from its routine incorporation
within the daily life of governments. The forms—treaties, embassies,
claims to jurisdiction or immunity, to territory and nationality, and so
on—go back far beyond the Treaty of Westphalia; and it is in the forms
and formulas of governmental intercourse that the lifeblood of inter-
national law has always flowed. If one seeks a critical development to
which the origins of modern international law might be attached, that
development should probably be the routine recording of official dealings
between different rulers or countries and the emergence of organized
governmental archives, which occurred in Europe some time around the
thirteenth century and many centuries earlier in Asia and the Middle East.
One measure of this development is the consumption of the wax used to
seal official documents. In the late s, England’s Royal Chancery used
 International Law
about ⁄ pounds of sealing wax each week: by the late s, this had risen
to about  pounds each week.
In Europe, there were by the fourteenth or fifteenth century very well-
established rules regulating the relations of States in times of war and of
peace. Some of the rules find vivid expression in literature of the period.
In England, the best-known examples arise a little later, in Shakespeare’s
histories. Henry V, in particular, gives a central dramatic role to the Laws
of War, as Theodor Meron has shown in his entertaining and erudite
studies of international law in Shakespeare’s plays. These rules were
rehearsed in court decisions and in opinions drafted by the international
lawyers of the day, and eventually set out in the classic European tracts on
international law.
Those texts began to appear in the sixteenth century, centuries after the
Middle Eastern and Asian texts. Their appearance coincided with the age
of exploration and colonization by the European powers. While some of
the earliest European texts, such as those by the great Spanish theologian-
jurists Vitoria, Suarez and Ayala, addressed questions of the rights and
duties of the European towards the peoples of the New World, most of the
early European treatises dealt mainly with war, peace, diplomacy, and
treaty-making—the traditional occupations of governments. That pattern
continued for three centuries, and is reflected in the classic texts by
Gentili, Grotius, Pufendorf, Vattel, and von Martens, albeit from a range
of doctrinal perspectives. But by the later nineteenth century the scope
of the texts was beginning to be considerably extended, so as to reflect
the increasing range of topics upon which States were finding it useful to
co-operate.
In the nineteenth century treaties regulating the waging of war, designed
to limit unnecessary suffering, were adopted. International organizations
were established, such as the Commissions regulating the uses of several of
the great European rivers and, rather later, bodies such as the International
Telegraphic Union, designed to facilitate international co-operation in the
wake of technological developments. These moves, which began around
two hundred years ago, heralded a period of extraordinary development in
international law, propelled by the coincidence of the realization of the need
for international co-operation to address problems insoluble by individual
States acting alone and the greatly increased possibility of international
communication through innovations in road, rail, sea and air transport,
and telegraphy. Over that period major developments have occurred in

4
Theodor Meron, Henry’s Wars and Shakespeare’s Laws (Oxford: Clarendon, ) and
Bloody Constraint: War and Chivalry in Shakespeare (New York: OUP, ).
 The Ambit of International Law 
three areas: in the scope of international law, in the range of international
organizations, and in the range of international actors.

.    

 
The first development is the massive expansion in the scope and sophisti-
cation of international law. The creation of the European Empires, and
their gradual dismantlement from the time of the wars of independence in
the Americas in the late eighteenth and early nineteenth century onwards,
demanded explanations of the differences between the various kinds of
States—Great Powers, colonies, protectorates and so on—and of how
they emerge and how one replaces another. These are the now familiar
questions of international personality and State succession. At what point,
for example, did the conflict in Yugoslavia in the s cease to be an inter-
nalYugoslavian problem in which outside States should not intervene and
become an international conflict between Bosnia, Serbia, and Croatia in
which other States might ally themselves with one or other of those newly
emerged States? In contexts such as this the traditional rules evolved and
were refined.
A much more radical change occurred in the field of human rights.
Classical international law was based on the supposition that it dealt with
relations between States, and that each State could and should look after
the interests of its own citizens. If a citizen was injured by a foreign State,
it was for the citizen’s own State to demand compensation from the
foreign State—to make a diplomatic claim. But no State had any right to
tell another how it should treat its own citizens. That supposition was
shaken to the core during the twentieth century. Close attention was paid
in the years after the Great War to the treatment of ethnic minorities
within States; but the decisive development followed the discovery of the
way in which Nazi Germany and the communist Soviet Union had treated
their own citizens. States could no longer remain indifferent to the mass
slaughter of human beings. If pure altruism was not a sufficient reason for
their intervention, the desirability of avoiding becoming embroiled in
international conflicts such as World War Two, with the immense cost in
suffering and resources that it entailed, was. The treatment of people was
pulled out of the sphere of the domestic jurisdiction of States—the sphere
of internal affairs, in which no other State has the right to intervene—and
Human Rights law was added to the canon of international law.
The making in  of the Universal Declaration of Human Rights,
along with the adoption of regional instruments such as the American
 International Law
Declaration of the Rights of Man in  and the European Convention
on Human Rights in , marked the inception of modern international
human rights law. They were followed by instruments such as the 
African Charter on Human and People’s Rights, and the  Arab
Charter on Human Rights. The emergence of human rights law is notable
not only because it represented the acknowledgement that States had
some legal, as opposed to purely political, interest in the way in which the
internal affairs of other States were conducted, but also because the justi-
fication for this development lay not in existing legal principles but in
moral imperatives lying outside the legal system. International law has,
from the earliest times, had as close a relationship with moral principle as
does criminal law within a State, although the moral principles applicable
in relations between States are by no means the same as those applicable
between individual human beings.
As the scope of State activity expanded, so did the scope of international
law. Much of the development was incremental, with specific initiatives
responding to the particular needs of the time; but there were larger
scale movements. Two are particularly notable. The first, building on
attempts in the late nineteenth and early twentieth centuries to deal
with certain aspects of the international economy, is the creation of a near-
comprehensive framework for international trade. Early agreements dealt
with matters such as arrangements for international payments and
exchange rates. The reconstruction of the international order that began
after World War Two and centred upon the creation of the United Nations
also saw the creation of the World Bank and the International Monetary
Fund (IMF), the General Agreement on Tariffs and Trade (GATT), and
later the World Trade Organization (WTO), as well as various agreements
regulating trade in primary commodities such as coffee and tropical tim-
ber. Regional economic organizations of immense importance were
formed, first in Europe, and later in Africa, in North America, and in Latin
America. International economic law is, perhaps, the fastest moving area
of international law at present.
A little later, international environmental law developed. International
concern focused first on marine pollution, partly because that was one of
the most visible forms of pollution and because its regulation intruded
least upon the way that domestic and industrial life proceeded within
States’ borders, and partly because it had the great benefit of falling within
the competences of one of the most vigorous and successful of all inter-
national organizations, the International Maritime Organization (IMO).
Economic law and environmental law have in common the characteristic
that they bite deep into the internal order of a State. They touch detailed
 The Ambit of International Law 
questions of financial and trade controls and of governmental regulation
of business that are the stuff of party politics—issues on which elections
are fought and won or lost. That is an indication both of the pervasive
significance of international law in contemporary life and of the intensity
of the pressure that drives governments to bind themselves to international
policies in these fields as the only practical way of addressing some of the
major problems that confront them.
The development of international law is, of course, a continuing process.
Much attention is being paid, for example, to the regulation of the Internet;
and it is notable that some of the private industry initiatives such as the
procedure for resolving disputes over internet domain names, established
by the Internet Corporation for Assigned Names and Numbers (ICANN),
dovetail into procedures established by international organizations of the
traditional inter-State type, such as the World Intellectual Property
Organization (WIPO), a specialized UN agency.

.    


This great expansion in the scope of international law was accompanied
by a second major development: the growth of international institutions.
The existence in the early nineteenth century of administrative bodies
such as the European River Commissions has already been noted. At the
end of the nineteenth century, international judicial bodies appeared. The
seminal episode, which signalled the possibility of the then Great Powers
accepting judicial settlement of disputes between them, was the establish-
ment in  of the arbitration tribunal that settled the United States’
claims against Britain for compensation for the damage inflicted upon the
Union by the confederate warship Alabama during the American Civil
War. The Alabama, one of the most destructive warships in naval history,
had been built in Birkenhead and delivered to the Confederacy in breach,
so the United States argued, successfully, of Britain’s obligations as a
neutral in the Civil War.
The advantages of third-party involvement in the peaceful settlement
of international disputes was underlined in . An attack on British
fishing vessels in the North Sea by the Russian Navy brought Britain to
the brink of intervention on the side of Japan in the Russo-Japanese War;
but again the matter was settled peacefully and swiftly, this time by a quasi-
judicial Commission of Inquiry. The path to international adjudication was

5
See T. Bingham, ‘The Alabama Claims Arbitration’ ()  ICLQ pp. –.
 International Law
clear. It led to the establishment of the Permanent Court of International
Justice (PCIJ) under the League of Nations, and its successor, the
International Court of Justice (ICJ), under the United Nations. At first
little used, in the s the International Court became extremely busy,
handling cases referred to it by States from all around the world. It is,
however, only one among many international tribunals. International
courts and tribunals are multiplying fast. Among the most notable are the
dispute panels established by the World Trade Organization (WTO), the
International Tribunal for the Law of the Sea (ITLOS), and the large
number of ad hoc arbitration tribunals that have adjudicated upon invest-
ment disputes under the auspices of the International Centre for the
Settlement of Investment Disputes (ICSID), the North American Free
Trade Agreement (NAFTA), and some of the , or so bilateral invest-
ment protection treaties that now exist.
International institutions also arose in the legislative field. International
rule-making began in the late nineteenth century with the establishment
of bodies such as the International Telecommunications Union (ITU), as
it is now known. It grew from the perception that in areas of international
activity, where goods or services or activities cross national borders, it is
more efficient to agree upon regulations internationally than it is to leave
it to each State to adopt its own, possibly idiosyncratic, measures. Today,
there are scores of such bodies, in all areas of human activity.
Many international organizations have competences that extend well
beyond adjudication and rule-making, and which include the monitoring
of compliance with the law and the formulation of policy. The United
Nations is the pre-eminent global example; but developments within
bodies such as the Organization for Security and Co-operation in Europe
(OSCE), and the Economic Community of West African States (ECOWAS),
indicate a recognition on the part of States that wide-ranging international
co-operation is today a practical necessity, because few, if any, States have
the capacity by themselves to deal with every problem that they may face.

.    

 
A third development in the international legal system was more radical. In
the nineteenth century international law was primarily the concern of
independent States, several of them colonial powers, in their dealings with
one another. They applied their own imperial legal systems to dealing with
their colonies and dependencies; but even those imperial systems mirrored
the basic mechanisms and institutions of international law. At that time,
 The Ambit of International Law 
however, international law could still properly be described as the body of
rules that States applied in their dealings with one another. Sovereign
States were, one might say, the only actors entitled to appear on the stage
of international law.
As international organizations became more familiar features of the
international scene, and particularly after the establishment of the
League of Nations in , the question of their legal status arose. Unlike
companies and corporations in domestic law, they were not the creatures
or possessions of any single State, but there was a reluctance to accept
that anything other than a State could truly claim a right to a place on the
international stage. Nonetheless, practical necessities such as the making
of agreements governing relations between the headquarters of inter-
national organizations and the State ‘hosting’ them led slowly to the
acceptance that they should be recognized as having an independent
status and the capacity to make international agreements in their own
name. Just as companies make contracts in the same way as people do in
domestic legal systems, and are therefore ‘persons’ recognized by those
systems, so too are international organizations recognized as persons
within the international legal system. Their capacities differ greatly.
Some have very narrow remits and correspondingly narrow powers.
Others, notably the European Union, have very extensive powers.
Indeed, in certain fields of international activity, such as fisheries man-
agement and trade regulation, the EU has formally supplanted its
Member States, the Union alone having the legal competence to negoti-
ate international agreements with non-EU States.
International organizations are not the only persons to share the stage
of contemporary international law with States. States have long been held
responsible under international law for the mistreatment of nationals
of other States—‘aliens’ as they are often termed—but the traditional
mechanism for invoking that responsibility was for the national State of
the injured alien to take up the matter with the allegedly wrongdoing
State. Indeed, that pattern is still followed on occasion. For example, in
 Paraguay brought a claim in the International Court of Justice
against the United States in respect of a Paraguayan national threatened
with the death sentence without, Paraguay said, having had the benefit of
access to the Paraguayan consul when he was arrested, as required by the
Vienna Convention on Consular Relations. Similar cases were subse-
quently brought against the United States by Germany in  and by
Mexico in .
The involvement of the State in the formal steps of preparing an inter-
national claim is, however, a time-consuming and expensive business which
 International Law
most governments usually consider to be an undesirable alternative to
persisting with attempts to find a negotiated settlement. Moreover, where
the injured person is not an individual but a company, the company may be
better placed than its national government to pursue its claim. A large
company will have the resources, the time, and the uncomplicated interest
in pursuing the company’s particular interests against the foreign State,
none of which may exist in the foreign ministry of the company’s home
State. Indeed, companies have long negotiated with the governments
of foreign States to conclude long-term concession contracts, for the
building and operation of railways, mines, oil wells and refineries, and
other large industrial projects. Those concessions, as might be expected of
agreements between a State and foreign companies who are not its citizens
and not entirely subject to its jurisdiction, have many of the characteristics
of international agreements concluded between States. In their form,
language and content they are a cross between a complex commercial
contract and a treaty. It was a natural extension of the activity of compan-
ies in making these agreements with foreign States that the companies
should be given the right themselves to make formal legal claims in cases
where they considered that the agreement or their basic rights under
international law had been violated. Thus, from the first half of the twen-
tieth century onwards companies began to edge their way on to the inter-
national stage, making concession agreements with States and litigating
against States as if they were their equals. Their place is now secured by
the provision made for such actions by companies in the hundreds of
bilateral investment treaties that protect their interests, and in multilateral
agreements such as the  Convention on the Settlement of Investment
Disputes Between States and Nationals of Other States (the ICSID
Convention), the NAFTA, and the Energy Charter Treaty.
Concurrently, in the mid twentieth century, a parallel development
occurred in the field of human rights. The protection of human rights could
have been left to States. The enforcement mechanism could have required
that one State Party to a human rights convention should institute proceed-
ings against another State Party if it considered that the other had violated
the convention. This is, indeed, one of the mechanisms that still exists for
the enforcement of human rights. But it was and is regarded as a mechanism
of limited value. Effective constraints upon the abuse of government power
are more likely to result from the internalization of human rights obligations
into the everyday life of the State; and one way of ensuring this, and maxi-
mizing vigilance over the actions of States, is to give the individuals directly
affected the right to institute proceedings in their own name. This right of
individual petition, as it is known, was introduced in the  European
 The Ambit of International Law 
Convention on Human Rights, at first as an optional matter, individuals
being entitled to initiate proceedings only against States that had chosen to
accept the right of individual petition. It is now compulsory, binding on all
the forty-four States currently Parties to the Convention; and around
, individual petitions are lodged each year. Individuals, too, are in this
field prominent actors on the international stage.
Sometimes individuals are unable to pursue their rights effectively.
They may be held in prison; the victims of government purges may be
unknown; villages in remote areas may lack the facilities for communica-
tion with the relevant international bodies. In recognition of this some
conventions, such as the  American Convention on Human Rights,
permit applications to be made by representative organizations. In this
way Non-Governmental Organizations (NGOs) have secured an acknowl-
edged place within the international legal system. They also have another,
less formally acknowledged, role. Particular NGOs have been enormously
influential in promoting international agreements upon specific topics,
especially in the fields of human rights and environmental law. Indeed, it
is not uncommon to see NGO representatives occupying positions on
the delegations of some, particularly very small, States at international
conferences. The expertise and energy contributed by such NGO activity
is of great value; but there are significant unresolved issues as to the
principles that should govern the participation of unelected single-issue
campaigning organizations in international legal processes.
States, international organizations, individuals, and companies are by
no means the only entities with which international law is concerned.
Alongside the concern for human rights there has developed a concern for
the rights of human groups as such. Indeed, the development of inter-
national mechanisms for the protection of human rights developed rather
earlier in the context of group rights than it did for individual rights.
Concern for minority groups was a prominent feature of the Versailles
settlement in , at the end of the Great War, thirty years before the
Universal Declaration and the European Convention on Human Rights
brought the defence of individual rights to the fore. In its most significant
contemporary incarnation, the concern for group rights is evident in the
recognition given by international law to the rights of ‘peoples’—a devel-
opment reflected in the title of the  African Charter of Human and
Peoples’ Rights. The rights of peoples have also been promoted in agree-
ments on national minorities and minority languages, and less directly, by
the development of areas of the law which are of particular importance
when the rights of peoples and minority groups are under threat, such as
refugee and humanitarian law.
 International Law
In principle, then, international law governs all activities of States that
involve a foreign element: that is to say, all dealings by public authorities
with foreign States or foreign citizens or with matters outside the borders
of the State. The high tide of government regulation may have passed at
some point in the late twentieth century: but governments still regulate so
many aspects of life that barely any field of human activity escapes their
attention, and with it the relevance of international law. Moreover, when
international organizations and companies (and to a lesser extent individ-
uals) come on to the international stage and deal with States as juridical
equals, they adopt the forms and methods of international law. The char-
acter of international law will doubtless change with the mutation of the
sovereign nation-State, but it will certainly not lose its importance.
I have mentioned three broad areas of regulation: human rights, trade,
and the environment. These are examined in more detail later, after the
more fundamental principles of international law concerning the rights
and duties of States have been considered. These principles are like the
skeleton, the framework on which the flesh of international co-operation
is built; and it is necessary to consider them first. But before I do so, I must
complete these introductory remarks by saying something about the
reasons for the high level of compliance with international law, and the
manner in which international law is made, invoked, and applied.

.     

 
I have said that the crucial difference between international law and
municipal law is that in municipal law the State is sovereign. It has what
may be called internal sovereignty, which means that its courts and its
government are subject to the laws of that State, but only to the laws of that
State. No superior governmental authority is recognized. I also noted that
international law has no legislature. Nor is there an international police
force, or even a compulsory system of courts before which States can be
compelled to appear. Nevertheless, most States comply with most of the
rules of international law most of the time. In the light of these character-
istics, some people have asked why States do in fact obey international law.
In fact, there are two questions that arise here: why do States comply with
international law and why should States comply with international law?
The first question, which asks why States do comply with international
law, is largely empirical. We could ask those who decide on the actions that
a State takes—or, to put it more precisely, those whose actions count as
actions of the State—what role they give to international law in deciding
 The Ambit of International Law 
upon courses of action and, to the extent that they are guided by it, why
they are guided by it and what circumstances they regard as warranting
action inconsistent with international law. International lawyers are not
very good at making empirical inquiries of this kind, and the evidence is
patchy, in large measure anecdotal and based upon the experience of those
at the fringes of political power. Some points are, however, clear beyond
dispute.
The first point is that international law is not imposed on States against
their will by an external legislature. Rules of international law mostly arise
either from treaties or from customary international law. Treaties are like
contracts, in as much as they are agreed and reciprocal commitments,
which States are free to enter into or not as they please but which are bind-
ing once made. If a State considers that a particular treaty will confer on it
more benefit than harm, knowing that every treaty involves some give and
take between the parties, it may decide to become a party to the treaty. If
the treaty seems likely to do more harm than good, it will not become a
party. Treaties are, therefore, commitments that States have already
decided that it is in their interest to comply with. It is scarcely surprising,
therefore, that all States do generally comply with their treaty obligations.
The position is broadly similar with regard to customary international
law. Rules of customary law are not so much made as discerned.
International relations, like all social relations, fall into certain patterns.
For as long as there have been formal dealings between States, envoys and
ambassadors have been sent from one to another. Perhaps somewhere
in unrecorded history there was a time when envoys were regarded as
disposable, and killed or captured once they had delivered their message.
But for all recorded history they have been regarded as entitled to a degree
of immunity and inviolability. Officials of a State did not have to consider
each time a new envoy appeared how they should treat him. It was well
known what the ‘right’ or ‘proper’ way to treat an envoy was; and it was
understood that this was more than a matter of convention or convenience.
It was an obligation. Rules of customary international law are, in essence,
simply those international rules that are discerned as having this obliga-
tory force. And again, because the customary practices are rooted in what
States habitually do, it is no surprise that States should habitually comply
with customary international law. Indeed, it is almost tautologous to make
the point.
One powerful reason why States do, and always have, complied with
international law is, therefore, that they make the rules to suit them.
International law constrains errant States, which seek to break away from
established patterns of behaviour or to abandon treaty commitments that
 International Law
they have made. But by definition, international law is a constraint that sits
very lightly on the shoulders of those who conform to it. While that
inevitably gives international law, like all law, a conservative character, it
also means that States can in general predict how other States will react in
certain circumstances. States can reasonably suppose that their neigh-
bours will, in general, act within the confines of the law. This aspect of
State behaviour has been extensively analysed in terms of game theory,
which analyses the ways in which actors in multi-player situations where
the reactions of other players are not certainly known in advance can best
maximize their gains or minimize their losses. While the simple models
of game theory6 seem to me ill-suited to the analysis of governmental
decision-making, spread between different departments and subject to
trade-offs across the whole range of governmental activity, the techniques
offer some interesting insights into how compliance with the law might be
analysed if government were a rational process.
Perhaps because some violations of international law are so dramatic,
there is a tendency to suppose that States only obey it when they choose,
and that the hard calculations of realpolitik give little weight to the law.
That view, particularly widespread among those whose vision is unsullied
by any knowledge or experience of the matter, is hopelessly wrong. If it
were possible to quantify breaches of the law, giving points to each trans-
gression of speed limits or parking offence, each technical assault in a
crowded commuter train, each theft of office paper clips and pencils and
computer time, each slander in home or school, and so on—not to mention
the murders, rapes, burglaries, and woundings that are the stock in trade
of every local newspaper, one might have a useful index against which the
score for international law-breaking could be measured. But the fact is
that, while wars and unarrested international villains are quite properly
given much prominence, they no more indicate global lawlessness than riots,
unlawful strikes, and unarrested national villains indicate domestic lawlessness.
My guess is that the extent of compliance with international law is in fact sig-
nificantly higher than the extent of compliance with many, perhaps most,
national legal systems.
Why? One reason has been given. International law is made by States to
serve their interests, so it is likely that it will be in their interest to comply
with it. A second powerful reason for compliance is caution. We speak of
States acting. States do not, of course, act: people act for them. Most of the
time the people acting for States are not tyrants or charismatic leaders: they

6
Among which the Prisoner’s Dilemma, and the minimax method devised for card players
by James Waldegrave in , are perhaps the best known.
 The Ambit of International Law 
are ordinary men and women holding down jobs in the civil service and
hoping to be promoted, or at least not to be sacked. Complying with inter-
national law is almost always a safe option. It is a good answer, when any-
one asks why a particular policy or action was implemented, to say that
international law required it. Occasionally a bold step unjustified by the
law may succeed and be applauded; but few are tempted to take the risk. As
anyone who has any familiarity with the great machines of government
will know, the functionaries who crave power are far fewer than those who
crave immunity and a quiet life.
There is an interesting field of inquiry here. Moral philosophy subjects
human behaviour to searching scrutiny, pressing hard the analysis of
motives and reasons and of intended and unintended consequences. On
rare occasions, individuals consciously deliberate upon the actions that
they should take, or are called upon to justify their actions. But moral
behaviour is never taught in such a systematic manner. All parents will
know that young children are taught, by the use of various incarnations of
the stick and the carrot, that there are acceptable and unacceptable ways of
doing things, and that there comes a point when the painful drilling of a
child’s demand to know ‘why?’ is met with a blank ‘because’. Irrational
and perhaps unjustifiable as such edicts may be, they form the bedrock of
behavioural norms, the foundation upon which individual choice is built.
So it is with States. The new intern or desk officer in a Foreign Ministry
rapidly absorbs the culture, and knows how things are and are not done.
And because bureaucracies are run by those who have been promoted for
their skills at playing by the rules, there is an immense inertial attraction
in all government departments to playing by the rules.
There is another point embedded in the one just made. States are gov-
erned by elites. I make no particular political point here. I am not saying
that international law is necessarily a weapon of class oppression or anything
of that kind. States must be governed; government can only be carried on
by a small minority of the population (otherwise there is no-one left to be
governed); and the commitments into which the State enters will
inevitably reflect what that small minority thinks is best. Whether what is
‘best’ is determined by referendum, representative democracy and
accountable government, corruption, or self-interest, depends upon how
the State is organized. But the point is important because it underlies
another reason for what is in many respects the extraordinary cohesive-
ness and effectiveness of international law.
States themselves differ widely in their characteristics. There are States
with massive industrial and commercial bases, able to defend themselves
economically and militarily against practically all conceivable threats;
 International Law
States where the life expectancy is under forty years, and governments
lack the money and the infrastructure to provide basic governance and
social welfare to populations regularly decimated by starvation and disease;
States run by corrupt and brutal governments or dynasties, practically
indistinguishable from criminal gangs. Yet all of them can, and usually
will, have their well-dressed representatives smoothly making the circuit
of diplomatic receptions in New York or Geneva. All can, and often do, sit
down in international conferences and hammer out treaty after treaty by
negotiations in which national interests may appear to be no more diverse
than those in a gathering where representatives of a drug cartel (whether
wanted international criminals or decorated captains of industry) negotiate
over the terms of supply. Why?
Observation suggests that one reason is simply that those who govern
States have much more in common with each other than they have with
many, perhaps most, of the people whom they govern. This is particularly
true of the officials or foreign ministries, who conduct a large part of the
international dealings of the State, and above all of the lawyers who serve
in those ministries. They undergo a déformation professionnelle. They are
trained in the lawyer’s and diplomat’s arts, often in one of a handful of
universities in Europe or North America; dispatched to international
conferences and organizations, where they meet others who have read the
same books, the same law reports and treaties and are perhaps alumni of
the same university; set to the drafting of diplomatic notes, treaties, and
reports, according to a style so homogenous as to delight the drafter of a
medieval book of court forms. To a significant degree they think alike and
act alike. And international law is their lingua franca, the vehicle for their
discussions, and the optic through which they view the world. Little
surprise that officials the world over should align themselves with the view
that international law, their professional calling and livelihood, should be
taken seriously. I exaggerate, perhaps: but not much.
A further reason for the general observance of international law is the
nature of the interest of governments in it. Their interests are long term;
and they are varied. Governments are repeat players in international
relations. Each decision they take must make sense not only in isolation, in
the short term, but also in the long term. A government-run ‘buy locally’
campaign may have the short-term advantage of assisting domestic indus-
try and agriculture. If, however, the consequence is that some months or
years later trading partners whose exports to the State dried up because of
the campaign retaliate by prohibiting imports of manufactured goods from
the State, the advantage is likely to be outweighed by adverse effects—as it
may if other States are encouraged by the campaign to put aside their
 The Ambit of International Law 
international trading obligations and discourage imports from all States.
Again, a government that is strenuously defending claims that it has in
some way mistreated a foreign investor will be mindful of the fact that
there may soon be a claim by one of its companies against a foreign govern-
ment, and that the language of its defence may be quoted against that
company.
Consistency of behaviour is highly prized; and because of the way in
which international law is formed, the balance of advantage for a State is
likely to lie in consistently complying with it. While it is often said that
politicians rarely look more than four or five years ahead, their horizons
being bounded by the date of the next election, that is not true of the civil
servants who run the day-to-day business of international relations. Their
view of the interests of the State is usually close to that of the immortals.
They know that a breach of international law today may well be cited
against them in months or years to come.
Similarly, the variety of a government’s interests weighs in favour of
compliance with international law. If restrictions on imports from a par-
ticular State make it less likely that the restricted State will permit use of
its ports and airports for the replenishment of military vessels and aircraft
in some future conflict, that is an important argument against imposing
the restrictions. Any government contemplating a violation of its inter-
national legal obligations needs to consider the long-term impact upon its
relations with all States across the whole range of international relations.
There is likely to be a price to be paid for violations; and it is not easy to
foresee when and where that price will be exacted. In most cases it is
preferable to obey the law and sleep soundly.
This point is often made by referring to the inter-dependence of States
in the modern world. No State is so completely self-reliant that it can
afford to offend, and invite retaliatory action from, other States by acting
in disregard of its international commitments—though in particular
circumstances it may decide that the advantages of non-compliance justify
the risk of adverse consequences. The point is obvious, and applies to the
social rules that hold any society together. The point does, however, have
its limits.
What has been said is true of governments as players in international
relations, and also of international organizations. But earlier in this chap-
ter I made the point that international law was now the concern also of
companies and individuals. Most companies tend to have a much narrower
range of interests than most States (there are no doubt exceptions, if
multinational conglomerates are compared with tiny States dependent
upon a handful of export products). Ultimately, companies are interested
 International Law
primarily in money. Individuals tend to have neither the breadth of
interest nor the long-term views of States. There is, accordingly, much
less of a restraint upon the manner in which companies and individuals
pursue their interests in international law. For example, a company claim-
ing compensation for the violation of its rights under an investment
protection treaty has every reason to pitch its claim at the highest level. It
has no fear that its words will later be cited against it, because it can never
find itself in a position where it is called to account for the treatment of
foreign investors. This asymmetry in certain branches of international
law, which results from the fact that companies and individuals litigate
against States on a footing of juridical equality, will, I suspect, distort the
development of international law. It will remove a natural brake on the
development of legal doctrine, permitting tribunals to develop the law
rapidly in certain areas, with the possible consequence that States may
rein in the rights of individuals and companies to litigate against them.

.     

 
I have left hanging the question, why should States (or more exactly, the
people who run them) comply with international law? This is not a ques-
tion that matters much to States. As I explained above, there are good
explanations of why States operate in accordance with the normal rules of
international intercourse, and those explanations do not depend upon a
fundamental basis of obligation that renders rules of international law
‘binding’. The question seems to have arisen only for the sake of symmetry.
People ask, particularly during civil wars and coups, why government
decrees or parliamentary laws should be obeyed. The answer is always
given in terms that seek to legitimize those in power: you should obey me
not simply because if you do not I will tell the police to arrest you or the
army to kill you, but because lawful authority is vested in me. Asked how
I came by that lawful authority, I may say that I had a mandate from the
people, or from God, or from the previous monarch. The history of the
answers to the question makes up a large part of the history of political
philosophy.
The situation is similar in the case of international law. In the distant
past, and indeed up to the Middle Ages in Europe, international law was
widely regarded as in some way ordained by God. Kings were God’s
anointed; an attack on the King’s representative was tantamount to an
attack on the King himself; hence representatives were inviolable. There
we have the seeds of the legal doctrine of diplomatic immunity. Treaties
 The Ambit of International Law 
were commonly sworn before God, and their observance was accordingly
a matter of religious obligation; hence the legal duty to observe treaties.
Many examples could be taken.
This essentially theological view of the rules applicable between rulers,
and later between States, persisted in Europe into the sixteenth century.
The tradition, rooted in a combination of Roman law and the theologies
of Augustine and Aquinas, is most evident in the works of the Spanish
writers such asVitoria and Suarez. As the secular powers waxed and began
to eclipse ecclesiastical powers, writers such as Hugo Grotius began to
shift to a more secular idea of natural law, a necessary order of society that
was inherent in the natural order of the world. If the early writers might
be said to answer the question, ‘why should rulers obey the Law of
Nations?’ by saying that God has ordained it, those who adopted this
increasingly secular view would say, because the natural order of the world
demands it. This development was coupled with a growing prominence
given to treaties and the customary law of nations, by writers such as
Alberico Gentili and Richard Zouche. Alongside the principles derived
from the natural order of things, the commitments that States freely made
in the form of treaty and customary law also defined the rights and duties
of States. International lawyers up until the end of the eighteenth century
tended to position themselves on a spectrum according to the relative
importance that they accorded to the law of nature on the one hand and to
customary international law and treaties on the other.
Changes in perspectives and modes of thought are characteristic of ages
rather than of particular dates. Perspectives emerge slowly, and they never
entirely disappear, no matter how faint their echoes may be. The critical
change from the earlier traditions came with the rejection of the idea that
there was a natural order, whether ordained by God or otherwise, that
entitled rulers to rule and obliged their subjects to submit. That rejection,
epitomized in the famous words of Thomas Rainsborough in the Putney
Debates during the English Civil War that ‘every man that is to live under
a government ought first by his own consent to put himself under that
government’, was clearly evident in the seventeenth century challenges to
the divine right of kings. It reached its apotheosis in the late eighteenth
century in the American and French revolutions, and the idea of consent
as the basis of the authority of government became firmly rooted.
The parallel development in international law shifted the explanation of
its binding force onto the notion that States had consented to be bound
by international law, through participation in the making of customary
international law or treaty law. That notion was refined throughout the
nineteenth century, under the influence of the curious notion of the ‘will’
 International Law
of the State. By the end of that century the idea was firmly established that
the authority of international law derived from the fact that States had—or
were to be treated as if they had—consented to be bound by its rules, and
not from any external source such as the ‘will of God’ or ‘the natural order’.
That perspective, often described as the ‘positivist’ approach to inter-
national law, was by no means revolutionary. It was a descendant of much
earlier views that gave prominence to the role of custom and treaties in the
Law of Nations. But it was important because it slackened the bonds that
held international law and theology or natural law theory close together.
This change, like all doctrinal changes, was of course a conscious shift
in political perspective. It was not that international lawyers came to
realize that they had been mistaken as to the theoretical basis of obligation.
Rather, they rejected the idea that those claiming the right to exercise
power and authority could rest their claims upon appeals to the will of
God or to the natural order of things, which the powerful have always had
little difficulty in discerning. The shift in perspective was made in order to
effect a shift in political power. Priests and divinely appointed kings, out:
professional politicians and civil servants, in.
International law in the twentieth century was understood and devel-
oped largely on the basis of this positivist outlook. States made new laws
by agreement. States that had plainly not consented to be bound by certain
rules, such as newly independent States emerging during the period of
decolonization, asserted the right to decide whether or not they would
subscribe to them. Treaty regimes, such as that which created the
European Community, were regarded as matters for Member States only,
so that non-Members could not be obliged to recognize the organization
or regime created by the treaty. Yet throughout the twentieth century the
natural law tradition remained as a basso continuo underlying international
law. It came to the fore in developments such as the Nuremburg war crimes
tribunals and the notion of human rights law, and also in the resurrected
idea that there are some rules in international law (the rules of jus cogens or
peremptory rules of international law, as they are known), that are binding
on all States regardless of whether or not the States have consented to be
bound by them.
In essence, positivists say that a State is bound by rules of international
law because it has signed up to them, either literally in the case of treaty rules
or metaphorically by the State’s participation in the making of customary
law. That has been the dominant ideology of international law throughout
the last century. The practical significance of this ideology upon the
day-to-day operation of international law is not entirely negligible, as will
be seen when I explain the role of consent in the making of international
 The Ambit of International Law 
law; but it is small. The most important characteristic of twentieth
century international law was its bureaucratization and the pervasive
colouring of inter-governmental dealings by the concepts and vocabulary
of international law: the nature of international governmental dealings is,
as they say, subdued to what it works in, like the dyer’s hand. Those who
actually engage in international lawyering are troubled seldom and little
by the question of the theoretical basis of obligation. James Brierly, who
devoted one of his more substantial articles to the question of the basis of
obligation in international law, wisely observed that ‘we are all of us
obliged to act as if we were convinced of the reality of an objective order,
both physical and moral, if we are to go on living and acting at all’. Quite
what the theoretical basis of that objective order might be is a matter that
can in practice usually remain a mystery.
Indeed, it is unhelpful to start from the question, what gives inter-
national law its binding force? This way of asking the question often sig-
nals a misconception as to what international law is. It suggests that
international law is something outside States, an external body of rules
imposed upon States against their will. This is not a helpful perspective
for anyone wishing to understand how international law works. It makes
much more sense to say that international law consists of that body of rules
that States have decided are binding.
Let me explain that point. All social life runs on the basis of regularities
of behaviour and response. We expect drivers in the United Kingdom to
keep to the left-hand side of the road; we do not expect that if we say ‘how
are you’ we will be met with a punch in the mouth; we expect that the
deliberately scratching of someone’s car will be met with an emphatic
protest; if we agree to meet someone for coffee at a certain time and place,
we expect them to turn up as agreed; some of us still expect people to
queue for buses in an orderly manner. Knowing the likely behaviour and
responses of other people allows us to function effectively as a society; and
understanding the rules and the consequences of breaking them allows us
to plan our lives. Breaches of some of the rules may elicit a frown or a
rebuke from others; breaches of other rules may result in a slap or a
punch; and breaches of some rules may result in a visit from the police and
a fine or spell in prison. We know that some rules are more important than
others—or at least, that violations of different rules are likely to lead to
different results. (It is not, however, the case that the rules of criminal law
are always the most serious: we may regard the seduction of a spouse as

7
‘The Basis of Obligation in International Law’, in H. Lauterpacht and C.H.M. Waldock,
The Basis of Obligation in International Law (Oxford: Clarendon Press, ).
 International Law
a matter of greater importance than a parking offence, even though the
latter is a crime and the former is not.) There are, then, many regularities
in social behaviour that map out our expectations of the way that we and
our neighbours should behave. And we, as a society, regard some of those
regularities as so important that compliance with them should not be a
matter of individual choice, or even a matter to be settled exclusively by
the wrongdoer and his neighbours, but as matters sufficiently important
to warrant the punishment of infractions by invoking the apparatus of the
Law and the repressive power of the State.
If we adopt the same perspective on international law, we can say that the
rules of international law are those regularities in international behaviour
that are regarded by the community of States as being so important that
they do not accept that each State is entitled to decide freely for itself
whether or not to comply with the rule. Thus, we should not ask, what
makes international law binding? Rather, we should say that international
law consists of those rules that are treated as legally binding.
The practical significance of the basis of obligation for the daily practice
of international law is limited, but its significance for the broad development
of international law is immense. During the twentieth century the general
assumption was that States are equal and independent and entitled to be
free from foreign intervention in their internal affairs. That assumption is
fast eroding. In the late twentieth century, and particularly since the fall of
communism in eastern Europe in the s, the idea of a pax Americana
began to gain hold—not least because the idea was implemented in a policy
of intervention in various States that were regarded by the United States as
having strayed intolerably from the straight and narrow. The interventions,
sometimes involving uses of force as, for example, in Grenada, Panama,
Afghanistan, Kosovo, and Iraq, had a variety of motivations and justifica-
tions, and should not be regarded as uniform instances of a single view. But
there is underlying them a uniform view: that the United States has, in its
own eyes, the right and the responsibility to impose the law in certain
circumstances, and to do so unilaterally if necessary. The era of the inde-
pendent sovereign State is drawing to a close. If this idea finds a coherent
theoretical basis and is applied in the practice of States, it will produce a very
significant shift in the nature of international law.

.    

  
I have said something about the scope of international law, and about
the main ways in which it is made and the reasons for the widespread
 The Ambit of International Law 
compliance with it. I turn next to the question of the manner in which it is
invoked and applied.
The application of the law proceeds in a way that is more subtle than is
often assumed. As I observed above, government lawyers, and also lawyers
in corporations and other organizations that operate internationally, tend
to share a common intellectual background and to look at the world in
much the same way. They see the world as made up of sovereign States, in
principle co-equal before the law, with boundaries fixed and jurisdiction
circumscribed by the law; they see links of nationality and territory as
significant markers of the extent of States’ legitimate interests, and so on.
Thus, the international legal system and its principles and concepts
become the framework for thinking about and practising international
diplomacy.
Given this shared view of the world, and shared understanding of
international legal principles, the invocation of the law can be a gentle and
allusive process, even in the midst of crisis. It usually proceeds in practice
by a process known in the field of linguistics as illocution: that is, approxi-
mately, the implicit meaning that the speaker intends to communicate
when saying something. This can be illustrated by a domestic analogy.

.   

Suppose that I, as a university professor, lend a book to a student. The
book is not returned, and I ask for it back. If it is still not returned, despite
increasingly urgent informal requests, I might write to the student on
University notepaper. By doing so I can imply, or may expressly state, that
within the University I am a Faculty member and the borrower is a
student, bound by University regulations on good conduct and so on. My
request—what I want the student to do—remains the same; but shifting it
into the University context by means of such signals has the effect of
suggesting that I regard the University as in some sense party to the
argument, and on my side. If that fails I may turn the ratchet further, and
invoke formal University disciplinary procedures. This will force the
University to take a stand; and if I am right in thinking that the regulations
are on my side, the University will take my part in the argument. That, in
turn, may lead bystanders to shy away from taking the part of the student.
They may believe that a community needs rules, and that rules should be
obeyed; or they may themselves have lent the student books and fear for
their return; or they may simply fear being branded by the University
authorities as collaborators with the student. In these ways, the shift into
the University context increases my power as against that of the student.
 International Law
Moreover, the context of the dispute is redefined. The student may
previously have argued that he needed the book for an essay, whereas
I had no urgent need for it, or perhaps had a second copy. Such moral
arguments are powerful in the straight request/refusal context; but they
lose much force, and may be regarded as relevant (if at all) only to the
mitigation of any punishment in the disciplinary context.
If these steps fail, I may hint at the possibility of civil legal action, or of
turning the matter over to the police as a case of theft. This, too, may be
done by the use of language. The mere use of a term such as ‘court’ or
‘theft’ in exchanges with the student is enough to indicate the change of
context. If police or court action is taken, the new context again alters the
position. The moral arguments become totally irrelevant to the question
of guilt on a theft charge. Support from bystanders is likely to ebb still
further when the police become involved. And my power is greatly
increased by having the police and the courts on side.
There are a number of points to note. First, all of these shifts in the
context of the dispute, in the factors and types of argument that are
relevant, and the relative power of me and of the student, have been
effected through the use of language. Indeed, all of the stages described
above could have been traversed in the course of a single oral conversation.
There is no need actually to have the police or the University proctors
turn up at the scene: it is enough to allude to their existence and possible
involvement. The power of the system, and power within the system, is
a function of how the systems are structured and organized, and not
immediately dependent upon actual exercises of power. There are of
course limits to this. If the power in question is rarely or never exercised
that will naturally diminish the force of the threat. If the student believes
that the police are likely to tell me that they have better things to do than
chase after the books of socially dysfunctional professors, my threat to
involve them will carry little weight. Nonetheless, it is by no means the
case that the persuasive power of the law depends upon the immediate
availability of some means of enforcement.
Second, the shifts in context were a matter of choice. There is no reason
why I must make the dispute a matter of University discipline or of
criminal law: that choice is mine. Moreover, the rational choice in almost
every context is to handle a dispute at the informal, ‘social’ level, rather
than translating it into a legal context. The choice is, however, one that can
be made unilaterally. If I choose to try to involve the police, the student
cannot insist that the dispute be handled without involving the authorities.
There is a further lesson to be drawn from the domestic analogy. If the
detention of the book does go before a University tribunal or a court, then
 The Ambit of International Law 
whatever the outcome of the proceedings the authority of the tribunal or
court is likely to be enhanced. Similarly, whatever rules are applied by the
tribunal or court, the authority of those rules is also likely to be enhanced.
The mere fact that the tribunal and the rule are used gives them greater
prominence, and makes their existence more of a factor in the calculations
of members of the community.
This analogy broadly holds good on the international plane; and the
 Kuwait crisis offers an example. On  August  Iraq invaded
Kuwait, and the matter was quickly taken up by the UN Security Council.
Many statements were made in the Security Council concerning the
invasion. Typical examples include the following, all drawn from Security
Council debates on the Kuwait crisis during August :
Mr Fortier (Canada) There can be no question that the brutal Iraqi aggression
against Kuwait is totally unacceptable and represents a flagrant violation of the
Charter of the United Nations as well as international law.
...
Mr Redzuan (Malaysia) . . . Malaysia considers the principles embodied in
the Charter of the United Nations as sacrosanct in the conduct of relations
between sovereign States.
...
Mr Blanc (France) The magnitude of these measures is justified, in the view of
my Government, because of the unacceptable nature of Iraq’s military aggression,
which is a major violation of international law and a serious threat to international
peace and security.
...
Mr Rasi (Finland) The acquisition of the territory of another State by the use
of force contradicts one of the most basic and firm principles of international law.
...
Mr Al-Anbari (Iraq) . . . The Iraqi Revolutionary Command Council stated
that the former colonizers had not left our region without first having undertaken
certain tasks.
In the past, the Arab nation was one and indivisible. After independence was
gained by the Arab States the many countries of the region were the result of foreign
colonizers carving up the territory of the region. The colonizers re-drew the
geopolitical map of the region in order to weaken the Arab States. That did indeed
split the Arab nation and made it difficult for it to speak with a single voice. . . .
In that way a part of the region cherished by Iraq—Kuwait—was separated
from Iraq. This was our country’s area of strategic access. The colonizers did not
hesitate to do in Iraq what they did in other countries of the region.
That is why the Iraqi Revolutionary Command Council decided to restore to
our country the portion taken away from it, thus re-establishing the eternal, indes-
tructible unity of our country.
 International Law
The pattern of the argument is clear. The States opposed to Iraq cited
international law in support of their case. Iraq defended its actions on the
basis of political and historical arguments, rather than on the basis of
international law. Each side sought to locate the debate in the normative
framework that best supported its case, and within which it had the
greatest power.
Notice that this explanation has not had to call upon any element of
coercion in order to explain why the law is useful or why it is obeyed. In my
domestic analogy, the law was brought to bear solely by the use of language
in a face-to-face discussion. There is, however, one significant difference
between the national and international legal orders. In national law it is
generally true that individuals ultimately have the right, and accordingly
the power, to insist upon the involvement of the authorities—the police,
the courts, and so on—in their disputes. No international tribunal has
compulsory jurisdiction. Even the discussion of an international dispute
(let alone the taking of action to resolve it) by an organization such as the
United Nations or NATO is a discretionary matter. States need to lobby
and persuade in order to have the matter taken up. While the co-operation
of the other party is not needed to shift the context, the co-operation of the
members of the organization is. And if it is desired to refer the matter for
judicial settlement in an international tribunal, that reference can only be
made with the agreement, in some form or other, of both disputing States.
This weakens the analogy, but not seriously. Most law—domestic and
international—is complied with as a matter of choice, not through fear of
sanctions. International law does, however, have a range of sanctions,
many of which do not depend upon action through international courts
and organizations. States may respond to violations of international law by
imposing economic or other sanctions on the wrongdoer, which may have
much greater impact than any judgment that a court might hand down. If
international opinion turns against a State, it may pay a heavy price. Credit
becomes more difficult to obtain; trade links and concessions may be
withdrawn; the State may be diplomatically isolated, and its attempts to
use international organizations may be opposed. And in extreme cases,
where a wrongdoer threatens to attack another State, the right to use force
against it in self defence exists.
It might be said that such measures allow strong States to deter wrong-
doing on the part of weak States but that no such measures can constrain
strong States. That is not so. There are no States so strong that they are
wholly immune to all of the pressures that may be brought to bear upon
them. The military power of the United States cannot entirely insulate it
from the economic power of OPEC or the European Union, for example;
 The Ambit of International Law 
and there have been several intense trade disputes between the blocs.
International and domestic political pressure may require that a govern-
ment act legitimately within the limits of international law.
Ultimately, a State set on disregarding the law may decide that the risks
and potential sanctions are outweighed by the probable benefits, and
choose to violate the law, just as an individual may choose to violate
domestic law. That does not invalidate the law. All societies tolerate a
certain level of law-breaking, which is the result of the balance between
the resources that the society is prepared to put into preventing the crimes
and the social costs of the crimes themselves. If every citizen were accom-
panied everywhere by three police officers, crime statistics would no
doubt fall, but not in proportion to the increase in the cost of policing.
What matters is that on the overwhelming majority of occasions the over-
whelming majority of people obey the law. The law is not an end in itself.
It is an instrument for achieving certain social goals. There is no particular
merit inherent in complete compliance with the law. The law succeeds if it
secures enough compliance to enable civilized social life to proceed and if
its enforcement is sufficiently effective, impartial, and non-discriminatory
to satisfy the basic demands of justice. That is as true internationally as it
is within any national society.

 
There are many good introductory texts on international law. Among them
are Antonio Cassese, International Law (Oxford: Oxford University Press,
), and Rosalyn Higgins, Problems and Process: International Law and
How We Use It (Oxford: Oxford University Press, ), and Peter
Malanczuk, Akehurst’s Modern Introduction to International Law (th
revised edn., London: Routledge, ). More substantial introductions
can be found in works such as Malcolm Shaw, International Law (th edn.,
Cambridge: Cambridge University Press, ), and Malcolm Evans,
International Law (nd edn., Oxford: Oxford University Press, ).
 

How International Law is Made

I have explained in a general way how the rules of international law arise,
but need to discuss the process in more detail in order that its potential and
its limitations as a tool of social organization be understood. The three
sections of this chapter describe how international law is made through
the formation of customary international law and the making of treaties,
and how tribunals apply other sources of law such as ‘general principles’
of law and ‘soft law’ principles derived from resolutions of international
organizations. The chapter may contain more detail than many readers
would wish, and they can skim through or skip over it.
The making of international law gives rise to a number of issues. One is
the question, who has the power to make international law? Obviously,
States are bound by treaties to which they have become parties, but are
they bound to comply with provisions in treaties to which they are not
parties? Are they bound by rules of customary international law that
emerged before the State came into existence, for example before the State
acquired its independence from a colonial power? The latter question
illustrates another aspect of the issue. It may be important to determine
when a rule of international law came into existence, and when it became
binding upon a particular State. Similarly, some rules of international
law are essentially local or regional, and questions may arise as to where
they apply, and which States they apply to. The range of issues of this kind
will become apparent as the processes of creating international law are
considered.
In Chapter , I referred to the changing doctrinal basis of international
law and the explanations of why international law is binding upon States.
In the early days of the subject, those explanations acknowledged three
main sources of obligations; treaties, customary international law, and the
principles of natural law or theology. The shift to a positivist conception of
international law largely excluded the appeal to the natural order as a
source of legal obligation, although vestiges of it survive in the references
to moral principles that have motivated some more recent legal develop-
ments. But in explaining what international law is, international lawyers
 How International Law is Made 
have never confined themselves to these three sources of law. The early
European texts, for instance, deployed arguments based on analogies with
the rules and principles of the major municipal legal systems.
All of these sources are reflected in Article  of the Statute of the
International Court of Justice (ICJ), which directs that Court to decide
cases before it on the basis of:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations.
That direction is specific to the ICJ, and in principle other international
tribunals could be directed to apply other bodies of rules—as the
European Court of Justice applies EU law, for instance. But Article  is
generally regarded as an authoritative statement of the sources to which
any tribunal may resort when it is directed to apply ‘international law’, and
references to other sources such as Security Council resolutions are
regarded as permissible only to the extent that such references are
required or permitted by an applicable rule of treaty or customary law.
That, at least, is the orthodox view, and is my starting point. But, as I shall
explain when I turn to consider other candidates for inclusion in the cata-
logue of sources, tribunals have a tendency to be more flexible than this
might suggest.
It makes good sense to begin this account by considering customary
international law.
 International Law

.   

..     
 
... A General Practice
The purpose of all rules of law is to introduce an element of predictability
into the behaviour of other people. We wish to be able to act on the basis
that others will behave in conformity with the law. In customary law sys-
tems, this means that people should behave in accordance with legal rules
that are expressed in established practices. It is the same in international
law. Hence Article  of the ICJ Statute refers to ‘international custom, as
evidence of a general practice accepted as law’. It should more properly
refer to ‘a general practice as evidence of an international custom accepted
as law’; but everyone understands what Article  is getting at. For a rule
of customary international law to exist, it must be manifested in the general
practice of States.
The development of the legal concept of the continental shelf offers a
good illustration. In  the United States, which had realized during
World War Two that a State’s dependence upon imported energy was a
major strategic vulnerability, sought to maximize its control over oil
resources. Extensive oil fields existed in the shallow waters of the Gulf of
Mexico, but mostly more than three miles from the coast. At that time
international law allowed States to control only a narrow belt of coastal
waters, known as the territorial sea. The United States claimed a three-mile
territorial sea, beyond which waters had the status of high seas. No State
could have exclusive rights over the resources of waters or the seabed of
the high seas. In order to bring the more distant seabed oilfields under US
control, President Truman issued a proclamation stating that:
the Government of the United States regards the natural resources of the subsoil
and sea bed of the continental shelf beneath the high seas but contiguous to the
coasts of the United States as appertaining to the United States, subject to its
jurisdiction and control.

On its face that proclamation asserted a right for which there was no basis
in international law. If, for example, the United States Coastguard had in
 arrested a foreign ship drilling for oil off the US coast, the arrest
could have been challenged as a violation of international law. But far from
objecting to the US assertion of rights over the continental shelf, other
States followed its example. In the late s and s, State after State
enacted legislation asserting its own exclusive rights over the resources of
 How International Law is Made 
the continental shelf. By the mid s many, but not all, States had made
claims of the same kind as that in the Truman Proclamation. That was
enough to amount to a ‘general practice’.
There is no set proportion of the States in the world that must conform
to a pattern of behaviour in order for it to be a ‘general practice’: even less
is there any need for every State in the world to conform. It is, however,
necessary that those States whose interests are particularly affected by the
rule should participate in the practice. A rule concerning, say, the use of
outer space could not be made without the participation of the States
active in space exploration. Subject to that point, it is necessary only that
the general practice be discernible, and that is a matter of judgement.
Furthermore, if the putative rule is to have universal force it is necessary
that participation in the practice should be broadly representative of all
the States in the world and not confined to States in a particular region or
political grouping.
It is said, perhaps apocryphally, that when one of the new universities
was built, instead of laying down footpaths the campus was covered in
loose gravel. At the end of the first year someone went up a tower block and
looked down. There was a clearly discernible network of pathways made
by the feet of the students over the preceding year. Some pathways had
been beaten by many feet—the paths to the library and the bars, perhaps.
Others were made by far fewer, if heavier, feet—the path to the rugby
changing rooms, perhaps. But, narrow or wide, the paths could clearly be
seen. What mattered was that the course of the path was identifiable, in a
way that it would not be if the course were obscured by other footprints
following random routes or a number of routes so varied that no one route
could be identified as ‘the’ path between two points. No doubt in some
areas there were lonely footprints charting unusual routes: but they would
not count as paths. The metaphor works well for customary international
law. Some practices are followed by many States, great and small. The
practices concerning diplomats are examples, because every State has at
least some diplomatic dealings. Other practices are followed by few States.
Practices concerning outer space are an example, because few States have
the capacity to engage in space exploration. But if the few States having
that capacity follow a consistent practice, not obscured by a host of differ-
ent practices, there will be enough to form the basis of a rule of customary
international law.
To return to the continental shelf, the consistency of national claims
that followed the Truman Proclamation, coupled with the absence of any
significant challenges to or variations in those claims, constituted a ‘gen-
eral practice’ for the purposes of generating a rule of international law.
 International Law
I have spoken so far about practices forming the basis for rules of custom-
ary international law, rather than actually forming the rules themselves.
That is because not all consistent practices generate rules of law.
.. O P I N I O J U R I S :      
There are all sorts of consistent practices in international relations. Heads
of State are consistently treated as immune from arrest and prosecution
when they visit foreign States, no matter how bestial the offences they
have directed in their home States. The practice of according immunity
from arrest and prosecution to visiting Heads of State is long established
and has generated a rule of customary international law, so that States are
legally obliged to accord such immunity. A visiting Head of State also
expects that on official visits he will have a red carpet rolled out to the steps
of his aircraft. That is also a well-established practice. But if he were to be
greeted by the sight of a roll of the highly patterned carpeting much
favoured in s Birmingham, he would not think that a violation of
international law had occurred. There are well-established patterns of
behaviour and expectations that, despite their consistency and clarity, are
not regarded as manifestations of rules of law. One function of the doc-
trine of sources is to distinguish those social conventions that are legally
binding from those that are not. That distinction is important because
breaches of legally binding rules entitle States to take various kinds of
corrective action that they could not properly take if the rules were not
legally binding. So, how is the distinction drawn?
The answer is almost a circular argument. International law requires, in
the words of Article  of the ICJ Statute, that the general practice be
‘accepted as law’. The States engaged in the practice must regard their
practice as an expression of a rule of international law. Claims to immunity
or decisions to accord immunity to Heads of State are made in the know-
ledge that the matter is regulated by international law and that the action
is in conformity with it. The Truman Proclamation was made in the know-
ledge that the claim dealt with a matter regulated by international law and
impliedly asserted that the claim to a continental shelf was consistent with
international law. This belief in the conformity of the practice with inter-
national law is known as the opinio juris. A general practice of States and
opinio juris are the two essential components that together generate rules
of customary international law. The body of State practice is sometimes
referred to as the material element, and opinio juris as the psychological
element.
It is easy to see how practice that is consistent with a pre-existing rule
can be thought to be consistent with that rule, but less easy to see how that
 How International Law is Made 
can be the case where the practice asserts a new rule, as in the case of the
Truman Proclamation.
This question is relevant to the process by which customary inter-
national law changes. If the practice of States had to be accompanied by
the belief that the practice was in accordance with existing international
law, international law could never change. But it must, and does, change in
order to accommodate changing social circumstances. A State wishing to
change the law makes, in effect, an ‘offer’ to States at large. It is as if the
United States said in the Truman Proclamation, ‘how about this for a new
way of dealing with ownership of seabed resources?’ If States agreed with
the United States’ proposal they would acquiesce in it, and perhaps make
their own claims to the continental shelf. The new practice would be
coupled with opinio juris in the sense that the States concerned would act
with the belief that their practice related to a matter governed by inter-
national law and that their practice was consistent with what they believed
that international law should be. This is what is sometimes called a proleptic
approach, anticipating a future development and treating the practice and
opinio juris as if there were already a rule of law corresponding to the rule
implicit in the practice.
This may sound unnecessarily complicated. We need, however, some
way of distinguishing between those innovative actions that are intended
to propel the development of international law by starting the process of
creating a new rule, and those that are not. For example, in  the British
Government was faced with the prospect of massive pollution of its coast-
line as a result of the grounding of a Liberian oil tanker, the Torrey
Canyon, on the Seven Stones reef in the high seas off Cornwall.
International law as it then stood provided no basis for the assertion of
control by the coastal State over foreign ships on the high seas, but the
British Government nonetheless bombed the tanker in an attempt to
set fire to the oil and minimize pollution. It stated that ‘the overriding
concern of the Government throughout has been to preserve the coasts
from oil pollution and to adopt the course most likely to achieve this end.
Neither legal nor financial considerations inhibited Government action at
any stage.’ That is a good example of an innovative practice which one
could not properly assume was accompanied by opinio juris—though
paradoxically international approval for the United Kingdom’s action was
so general (even Liberia made no protest against it) that the right to take
such action against shipping casualties on the high seas was established, a
treaty concluded at a multilateral conference in , and passed rapidly
into customary law.
 International Law
States do not usually assert explicitly that their actions are (or are not)
consistent with international law: explicit statements of opinio juris are
rare. Even the Truman Proclamation was not based on any express asser-
tion that the American claim was lawful, but only that it was ‘reasonable
and just’. In some cases, however, it is so obvious that the conduct in ques-
tion relates to a matter that is regulated by law that it may be presumed that
a State’s conduct is accompanied by opinio juris. Everyone understood
that the question of the rights of a State over the resources of the high seas
was a matter of international law, for example. There could be no doubt
that the United States was taking a step that had legal significance; and the
presumption is that States act in accordance with what they believe to be
the law. Hence, it was proper to presume the existence of opinio juris in the
case of the Truman Proclamation; but the presumption was rebutted by
the government statement in the Torrey Canyon incident.
Where actions are not accompanied by any explanation, the practice is
to assume that the State regarded itself as acting lawfully: but that would
be consistent with the State either believing that it had a legal right or duty
to do what it did but was acting in conformity with it, or believing that the
matter is not regulated by law at all but is a matter of policy or expediency.
In the case of the Truman Proclamation the position was clear, because a
claim to exclusive rights could only have a legal basis. Debt relief is an
example of a practice where the position is less clear. The government
debts of the world’s poorest countries have repeatedly been rescheduled
or cancelled when they have been unable to service the debt. Debt relief is
a partially institutionalized process operating through the Paris Club,
whose Member States have developed principles and standard terms
applicable to debtor States. Does this mean that debtor States have a right
to debt relief? Is it a matter of legal rights and duties, or a matter of expe-
diency or of policy unregulated by law?
This question is resolved in practice by approaching it from the point
of view of the burden of proof. It is a general principle of international law
that anyone who asserts a proposition has the burden of proving it. If
someone asserts that a particular practice has crystallized into a rule of
customary international law, they must prove it by demonstrating that the
necessary general practice, coupled with opinio juris, exists. In the absence
of proof of such opinio juris the practice would remain without legally
binding force, no matter how consistently it is followed. And in the case of
debt relief, it is not possible to show that there is the necessary opinio juris.
Whatever moral, political or economic imperatives may drive it, as a matter
of international law debt relief is a privilege and not a right.
 How International Law is Made 
The need to distinguish between conduct that is regarded as an expres-
sion of an underlying legal rule (even though the motives for undertaking
the action may be rooted in non-legal policy considerations) and conduct
that is not so regarded is particularly acute in the case of prohibitive rules.
Here the conduct consists of inaction. Diplomatic immunity has already
been mentioned. If a serving diplomat appears to have committed an
offence, customary international law requires that the State in which he is
serving should not prosecute him. Compliance with that rule requires
precisely that the State should do nothing. But States often do nothing,
and for a wide range of reasons. For example, so far as I know no State
prosecutes people within its borders for having smoked cannabis in some
foreign country where its consumption is legal. Does that pattern of con-
duct generate a rule of customary international law stipulating that States
must not prosecute people in such circumstances? And if not, how is that
pattern of inactivity to be distinguished from the inactivity underlying
diplomatic immunity? The test is one of legal relevance. Is the conduct in
question in principle regulated by international law, and is the inactivity
an expression of the conviction that international law requires States to
refrain from acting? It is a matter of opinio juris.

..   

Before leaving the topic of the components of customary international
law, I should say something about the temporal element, the duration of a
particular practice. Customary law systems generally suppose that the
rules that they apply are long-established, whatever that may mean within
the particular system. The reason for the concern with time is a matter of
authority. It is necessary to show that a putative rule is rooted in the com-
munity, and not an ephemeral reflection of the views or aspirations of par-
ticular litigants or lawyers. Proof that a practice has long been followed is
good evidence that the rule evidenced by the practice is firmly established.
But it may also be possible to provide that evidence in another way.
Space law offers a good example. International law is made in response
to the actual concerns of the international community and rarely addresses
hypothetical problems. When the first man-made satellite was launched in
, there was no international law of outer space. There was not (and is
still not) even a settled definition of the upper limit of a State’s jurisdiction
over the airspace above its territory. In the absence of any rules it could
perhaps have been argued that each State was entitled to that part of the
universe that extends above its territory. The significance of man’s first
expedition beyond the planet was not lost on the United Nations, however,
and the matter was debated in the General Assembly, which adopted a
 International Law
number of resolutions on the subject. Those resolutions, and notably the
 Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space, purported to set out the basic
legal principles governing outer space, such as the principle that neither
the moon nor other ‘celestial bodies’ (as they are known in the picturesque
vocabulary of the UN) may be appropriated by any State.
Those resolutions were adopted without dissent, and evidenced an
international consensus as to what the legal principles governing outer
space should be. Since the basis of the binding force of customary inter-
national law is said to be the freely given consent of States to be bound by
it, it was widely argued that these resolutions effectively created ‘instant’
customary international law. Though the resolutions were succeeded by
several treaties on various aspects of outer space, this view of their effect is
largely unchallenged. In the North Sea Continental Shelf cases in  the
ICJ expressly accepted the possibility that a widespread and representa-
tive practice could generate a rule of customary international law even
without the passage of any considerable period of time. This means of
creating customary international law is particularly appropriate where the
rules in question are prohibitive. It makes little sense to wait for a long period
to elapse during which States refrain from making claims to sovereignty over
the moon, for example, if there is explicit agreement that no such claims
would be lawful.
..     
I have spoken of the practice of States without so far explaining what that
practice consists of or how it is identified.
We often speak of States as if they have a real existence and can them-
selves act. They have, of course, no material existence and must act
through human agents. The question is, therefore, whose acts count as the
acts of the State? In principle, anyone acting in an official capacity may be
said to be acting on behalf of the State: the legislature, judiciary, and the
executive government; the civil service and armed forces; police, immi-
gration officers, tax inspectors, and so on. But it is necessary to bear in
mind the context of the question. The question is, what is the practice of,
say, the United Kingdom in relation to this or that matter? In effect, we are
asking whether the United Kingdom should be regarded as having signed
up to a particular rule of customary international law. It is therefore nat-
ural to seek State practice that evidences what one might call an ‘official’
and ‘considered’ view of the State concerned.
If the junior officers at the immigration desks of a State’s airports
consistently single out people of certain ethnic backgrounds for detailed
 How International Law is Made 
questioning, allowing others to pass through unmolested, that does not
necessarily mean that the State considers that as a matter of international
law it is entitled to discriminate in this way. It may be that the government
of the State abhors the practice and would discipline the officers con-
cerned, and would reject the idea that international law permitted such
discriminatory action. If a complaint were made about the action, the
State could not disown it, because the practice was that of a person
exercising official State functions and acting for the State. The State is, as
a matter of international law, responsible for it. But the State could, while
accepting that the practice was imputable to it, take the view that the prac-
tice was not an expression of its policy towards international law.
Certainly, the higher the level of government at which a particular practice
operates the more reasonable it is to regard it as the practice of the State.
That said, any official acts may count as State practice. When the
United Kingdom Parliament enacted Part  of the Anti-terrorism,
Crime and Security Act  it made British citizens liable to prosecution
for bribery and corruption even if committed abroad. The enactment of
that law was a piece of British State practice evidencing a claim to exercise
extraterritorial jurisdiction over the acts of its nationals in the circum-
stances set out in the statute. So, too, would be the prosecution of a person
for a breach of that Act, as would the conviction of the person. The acts of
the legislature, the police and the courts each evidence the underlying
jurisdictional claim.
There is a need for some caution in interpreting practice, and in particu-
lar, statutes. The (UK) Theft Act, for example, makes it an offence to steal.
It is not expressly said to apply only within the United Kingdom, or only
to British citizens. The ordinary meaning of its language is wide enough to
apply to Chinese pickpockets in Beijing. But the law has never been
applied in that way and almost certainly will never be applied in that way.
It is interpreted in accordance with the established canons of interpreta-
tion in English law as applying only within the borders of the United
Kingdom. It would be incorrect to suppose that the statute asserts univer-
sal jurisdiction over all thieves. Statutes, and other items of State practice,
must be interpreted carefully, in accordance with the principles of inter-
pretation of the legal system in question.
Difficulties arise with State practice around the margins. Some func-
tions that are widely considered to be typical of the State may in fact be
undertaken by bodies that are not technically part of the State govern-
ment. For instance, in many countries religious courts adjudicate upon a
wide range of offences. Do the acts of such courts count as the practice of
the State, for example if they convict and order the punishment of a
 International Law
person for an act committed abroad? Private institutions are licensed or
acknowledged by government in many States to regulate commercial
sectors, such as the securities and insurance industries. Should a require-
ment by such an institution—the Stock Exchange, or the Bank of
England, for instance—that a foreign company report upon its overseas
activities, or conduct its operations in a foreign country in a particular way,
be counted as a practice of the State?
At the heart of this problem is the question of what a State is. There are
different ways of organizing a State, and different ways of conceiving what
the State is. Governments have controlled the prices of goods and services
and labour, and mandated or forbidden compliance with certain religious
prescriptions, and traded in commodities and goods on international
markets. In other States and at other times governments have, by design or
through impotence, exercised only the most minimal control over daily
life. The provision of education and healthcare, and even the organization
of policing, has been taken on by non-governmental organizations in order
to fulfil public needs. In yet other States private organizations operate in
parallel to the government. Prices may be regulated both by the government
and by lawful private cartels; the security of persons and property may be
protected by the regular police force, and by private security firms or
bodyguards or criminal gangs. Which of these should we count as acting
for ‘the State’?
One cannot say that only governmental agencies should be counted,
because that begs the question of what is governmental. The concepts
of ‘State’ and ‘government’ have little in the way of necessary or natural
content, and certainly not enough to provide a workable criterion.
There is another problem in identifying what is State practice. Take, for
instance, the law on expropriation. Customary international law permits
States to expropriate foreign property for public purposes on certain
conditions, one of which is that the expropriation must not be discrimin-
atory. That leaves open the question whether, say, a nationalization of all
foreign-owned farms without discrimination, but of no farms owned by
resident citizens, would be regarded as discriminatory or not. Suppose
that in this context there had been many claims by companies of many
different nationalities in which they had consistently argued that it was
discriminatory, and suppose that those claims had been brought against,
say, half a dozen States. If the claims were in this respect conceded by the
States, could the companies’ claims be counted in together with the State
practice, so as to establish a much more widespread pattern of behaviour
than would be possible if the States alone were taken into consideration?
Or suppose (as is much more likely) that the States consistently reject the
 How International Law is Made 
claims and assert that it is only discrimination among foreigners and not
discrimination against foreigners that is forbidden. If there were a signifi-
cant number of States engaged in this practice, there might appear to be
enough of a consistent pattern to be discerned from their practice to estab-
lish a rule of customary international law. But can the claims of the compan-
ies be taken into account in order to contradict that practice, so that it
cannot be said to be unchallenged?
This question is important and of great political significance, and there
is much that could be said on it. It determines whether the power to make
and change international law lies exclusively with States, as Article  of
the ICJ Statute suggests, or whether it is to be shared with other organiza-
tions such as companies. It is a question that arises out of the changing
nature of international law; and in broad terms there are two approaches
that might be taken—or, more likely, a combination of the two. First,
international law may accommodate non-State actors and accept their
practice as one of the contributory sources of developments within the
international legal system. That approach would be something like the
approach to law in the Middle Ages, in which there existed a body of Law
Merchant developed from a fusion of the common law and of customs of
traders, and applied through a recognized system of tribunals more or less
integrated into the national legal system. The alternative possibility is that
international law will remain the preserve of States and governments, and
that non-State actors are likely to seek to secure their interests either by the
use of particular contractual arrangements or by persuading States to adopt
sympathetic laws and policies.
It is difficult to offer a coherent theoretical explanation of the present
position regarding the actors whose practice counts towards the formation
of international law, but much easier to describe the present practice.
International lawyers and international tribunals still look primarily, if not
exclusively, to the practice of States, and the practice of States is implicitly
regarded as being the practice that is recorded in official publications,
such as law reports, statutes, records of parliamentary proceedings, and
statements issued by the departments of central government. The solu-
tion is in practice found, in other words, not so much by focusing on the
question of the authority of the actor as by focusing on the authority of the
sources that record the practice.
I have spoken of the ‘acts’ or ‘practice’ of a State; but inaction is often
equally important. If, say, a State expropriates only foreign-owned farms
and no other State makes any protest, that is significant. At least in the case
of States whose nationals had property taken, and which are aware of the
expropriations, the silence will amount to acquiescence, because a State
 International Law
that is directly affected by a violation of international law is expected to
protest. The expectation, imposed by a rule of international law, goes back
to the question of predictability. It is undesirable as a matter of policy that
an activity should be tolerated over a period of time, but later condemned
as unlawful. Those engaged in the activity would not know where they
stood. That policy is applied in all the main legal systems, forbidding a
change of position once a certain practice or state of affairs has been acqui-
esced in. The same is true in international law. Evidence of acquiescence
is in effect taken as evidence that the acquiescing State regards the activity
or state of affairs as consistent with international law. The acquiescing
State may be counted as a supporter of the rule in question along with any
States whose positive actions have contributed to the ‘general practice
accepted as law’.
Protests against breaches of international law are particularly signifi-
cant. As the ICJ recognized in the Nicaragua (Merits) case in , if one
State violates the law and others protest, the protests implicitly affirm the
rule in question. Thus, breaches of international law may, paradoxically,
strengthen the law rather than weaken it, if the offending State is con-
demned and isolated. Conversely, as I shall explain shortly, if other States
remain silent in the face of an apparent violation of the law, it may be that
the first steps towards a change in the law are being taken.

..    

Unearthing evidence of State practice can be an enormously time-
consuming and tedious process. Tunnelling through Hansard, Parliamentary
Papers, official publications, law reports, newspaper reports, and so on
in order to gather evidence of the practice of one State is a counsel of
perfection: to do so in order to determine the practice of all of the  or
so States in the world is beyond the limits of practicality.
Two devices are adopted to cope with this problem. The first is the
compilation of digests of State practice. Some States, most of them the
Old World States of Europe and North America and the larger States
elsewhere, publish annual surveys of their practice on points of inter-
national law. Sometimes this is done officially, as in the Digests of United
States practice in international law prepared by the State Department.
Sometimes it is done unofficially, as in the section on United Kingdom
Materials in International Law that has appeared at the end of each
volume of the British Yearbook of International Law since . (Many
Yearbooks in other States also contain such sections.) With the material
arranged topic by topic it is relatively easy to glean whatever practice there
might have been on a particular point by consulting these collections.
 How International Law is Made 
The second device is to ignore the problem. In practice, both tribunals
and writers are satisfied with very little in the way of State practice. It is
rare for the practice of more than a couple of dozen States to be cited on a
point of customary law; and not uncommon for far fewer States to be
cited. One of the most dramatic decisions of an English court on custom-
ary international law was the  Trendtex case, in which the Court of
Appeal’s decision that a new rule of international law on sovereign immun-
ity had arisen was supported by the citation of the practice of a mere
handful of (western) States. Of course, on some matters by no means all
States will have relevant practice. Afghanistan’s practice on the Law of
the Sea, for example, is probably sparse. But on other matters practice is
widespread. There is in principle no reason for neglecting the practice of
any State; but international law as it is practised is a real-time activity.
Practitioners do the best that they can within the time available; but that
time rarely permits more than a limited scrutiny of material.
This plainly gives a disproportionate influence to the practice of those
States whose practice is most easily accessible, and that depends largely on
the language in which the material is written and the manner in which it is
published, if it is published at all. A glance at the textbooks and articles
written during the twentieth century confirms this. Evidence cited in
support of propositions concerning customary international law rarely
extends beyond material in European languages; and even within that
category the well published and well publicized United States’ digests
exercised an exceptional influence. That position is slowly changing as the
practice of more and more States is published. But the linguistic limita-
tion of international lawyers is a much less tractable problem.
..    
I have explained that rules of customary international law are formed by a
general practice accepted as law. The relationship between the rule and
the practice needs to be understood. It is not that by an exhaustive exam-
ination of State practice we could eventually discern all of the rules of
international law, rather as a tropical botanist might eventually identify all
of the species of plant in a rain forest. The practice does not push forward
ready-formed rules, there for the seeing. Rather, lawyers think for some
reason that there ought to be a rule on a particular point and then search
to see if their hypothesis is supported by the practice. When one considers
the circumstances in which rules of law are put in question one can see that
this must be so.
Suppose, for example, that the United Kingdom wishes to complain
against a foreign State that has refused to allow a British ship carrying
 International Law
nuclear materials to sail through its waters. The foreign State asserts that
the ship has no right of passage. The United Kingdom does not wish to
request permission for the ship to pass because it believes that passage is a
right and not something that the foreign State may decide whether or not
to permit. The United Kingdom accordingly will wish to show that there
is a rule of international law allowing that passage. Unless the matter is
settled by a treaty between the foreign State and the United Kingdom, it
will be necessary to see if customary international law has a rule dealing
with the matter. The foreign State, of course, will wish to find a rule of
customary international law supporting its claimed right to refuse to
permit the passage.
The search for the rule of customary international law is not as simple as
might at first appear. It is unlikely that there are numerous instances on
record of States explicitly acknowledging or denying a right of passage to
ships carrying nuclear materials. There are relatively few voyages transpor-
ting nuclear cargoes, and coastal States may be unaware that those ships are
passing through their waters, or unaware of their cargoes. If they are aware
of the ship and its cargo they may prefer to preserve a diplomatic silence
rather than object and precipitate a conflict of views from which neither
State is likely to back down and from which the coastal State may have lit-
tle to gain. And State practice may be inconsistent. While some States may
object to passage, some may have expressly announced that such ships have
a right of passage, and yet others may have decided to allow such ships to
pass through their waters without comment. It may, therefore, be very dif-
ficult indeed to find a clear pattern evident in State practice that is precisely
on the point. That is not, however, the end of the matter.
No legal system has rules that specifically cover all possible cases that
might arise. A local bye-law may prohibit the taking of dogs into parks
but say nothing about taking in pumas; but the omission is unlikely to
confound a police constable intent on excluding from a park someone
walking a puma on a rope. In cases such as this we extrapolate, we seek the
general rationale behind the rule and extend it. We ask whether a particu-
lar interpretation of the law does or does not fit with the basic purpose
behind the law. So, in the case of the disputed right of passage, it may be
possible to point to practice concerning the passage of other dangerous
cargoes, and to practice concerning the carriage of nuclear and other
dangerous materials by road and by air, and practice concerning the
passage of nuclear powered ships. If the result of that examination is that
it appears that the rationale behind rules in this area is, as common sense
would suggest, the balancing of the interests of carriers against the need of
States to avert accidents involving hazardous materials, and if it appears
 How International Law is Made 
that in the case of air and road transport nuclear materials are treated
in broadly the same manner as other hazardous materials, it will seem
reasonable to suppose that the same approach should be taken to the
carriage of nuclear materials at sea. If there is in addition some small
amount of State practice supporting this view, and no great body of prac-
tice contradicting it, it may be concluded that this approach is correct:
there is a good basis for saying that there is a rule of customary inter-
national law that stipulates, say, that there is a right of passage for ships
carrying nuclear cargoes subject to the compliance with reasonable regu-
lations imposed by the coastal State in order to safeguard its waters and its
land territory.
The same approach is adopted to a closely related methodological prob-
lem: that of determining what is the scope, the precise ambit, of a rule that
is inferred from State practice. For example, there is a good deal of State
practice evidencing a belief that States may enforce their customs and
fisheries laws in the territorial sea around their coasts. Customs inspectors
or police launches regularly visit and search foreign ships in the territorial
sea; statutes prescribe rules that the ships must obey, and authorize the
interception and prosecution of offenders; States acquiesce in the arrest
of their ships by coastal authorities; and so on. The same is true of the
enforcement of criminal laws in respect of serious crimes, and laws on
certain other matters such as marine pollution. If we were to consider all
of this practice and try to infer a rule or rules of customary international
law from it, we would certainly be justified in inferring recognition of the
rights of States to exercise jurisdiction in their territorial seas in respect of
each of these topics. But under international law, coastal States enjoy
sovereignty over their territorial seas: that is, they have the same plenary
jurisdictional rights over the territorial sea as they have over their land
territory, subject to certain limitations flowing from the existence of a
right of passage for foreign ships through the territorial sea.
This is a conundrum. How could evidence of the acceptance of juris-
diction in respect of a range of specific matters ever warrant the inference
of plenary jurisdiction in respect of all matters? As a matter of strict logic,
it could never do so. The solution to the conundrum lies in the nature of
legal reasoning. For all that Law is, in the nineteenth century nomencla-
ture still used in most universities, a social science, the discerning of rules
by inferring them from State practice is more of an art than a science.
Questions of the ‘fit’ of putative rules with established rules and prin-
ciples are approached in a manner that has more in common with aesthetic
judgement than it has with calculation, computation, or rigorous logic.
Consonance, symmetry, and economy are qualities admired in the structure
 International Law
of a legal regime made up of individual rules. Above all, lawyers look for an
accord between the outcomes yielded in particular cases by the rules, and
the dictates of common sense and common morality: if the application of
international law to a particular case leads to an astonishing conclusion,
the analysis is probably wrong.
In the case of maritime jurisdiction, sovereignty over the territorial sea
was propounded long ago as a doctrine, and was claimed by States. States
have sovereignty over the airspace above their territory and over deeply
indented bays and estuaries that are, as it were, contained within the jaws
of the land. Sovereignty over the territorial sea is consonant with these
principles and mirrors them; and assimilation of the territorial sea to the
land territory over which the State has sovereignty is an elegant and
economical solution because it obviates the need for the creation of a novel
legal regime for this part of the seas.
The dominant conceptual move that characterizes legal thought here,
and everywhere else, is the ‘as if ’ move. A particular state of affairs is
treated ‘as if ’ it were some other, simpler state of affairs. Complex business
relationships are treated as if the relationship were defined by the rights
and duties set out in a contract; an assertion of jurisdiction is treated as if it
were the same as an earlier exercise of jurisdiction which had been regarded
as lawful; and so on. The core characteristics of a situation are discerned,
and the simplified structures of reality represented by legal rules are
mapped on to them, to yield a legal characterization of the situation. This
is particularly noticeable in the case of customary international law, where
the two-way relationship between rule and reality is particularly evident.
Simple, clear rules are inferred from the untidy mass of State practice; and
the rule is then reapplied to new, perhaps equally untidy, situations. The
new situation is treated as if it were another example of the practice
that generated the rule. The new situation in turn is added to the store of
examples of the customary law rule, expanding the catalogue of instances—
instantiations—of the rule with which some future set of circumstances
may be compared. This is reasoning by metaphor; and that is precisely how
Law operates. The crucial step is finding the right metaphor.
..    O P I N I O J U R I S
Let me now delve a little deeper into some aspects of customary inter-
national law.

... Proving Opinio Juris

Opinio juris—the conviction on the part of a State that a particular practice
is in conformity with international law—may appear to be a mysterious
 How International Law is Made 
concept. As the ICJ remarked in the North Sea Continental Shelf cases in
, it is extremely difficult to find clear evidence on the question of opinio
juris. Described as a ‘component’ of customary international law, it is easy
to assume that it is like an ingredient in a recipe. In fact, it would be more
accurately likened to a way of cooking the ingredients of State practice.
States, of course, do not have convictions. We speak as if States have
minds of their own, about France opposing this policy and Russia propos-
ing that action. But States do not have intentions, interests, aspirations, or
any other of the anthropomorphic characteristics conventionally ascribed
to them; the State’s interests and actions are invariably and inevitably
decided by those who control the State. There is more to this than the trite
point that States must act through individuals, who do of course have
intentions and interests. In practice, States very rarely act through an
individual. Usually they act through committees that propose, select,
refine, and implement agreed policies and courses of action. Whose state
of mind is relevant? What if some members believe that an action is lawful
and others disagree? How is the state of mind of any of them to be deter-
mined? Even to pose these questions is to point towards an unavoidable
answer. It is wholly impractical to rest opinio juris upon any real conviction
or belief; and to try to analyse State behaviour in accordance with models
of rationality that may be serviceable in analysing individual behaviour is
deeply problematic. There must be another approach.
The key lies in the process of checking to see if the practice of a particu-
lar State should count towards the generation of a rule of customary
international law. The determination of the existence of opinio juris is in
essence the process of characterizing the practice of the State. The char-
acterization proceeds by means of presumptions. If a State does something,
the State is regarded as acting with the belief that it is entitled so to act,
that its action conforms with international law. Opinio juris is presumed to
exist. That presumption may be rebutted by pointing to some statement,
such as the British Government’s statement over the Torrey Canyon, that
plainly indicates that the action was not considered to be supported by
international law or was even considered to be contrary to international
law. If the presumption is not rebutted, it stands.
If the rule in question is not one that confers a right, but rather one that
imposes a duty, this approach is inadequate because there may be many
reasons why a State chooses to act in a manner mandated by the law. It may
do so as a matter of expediency or policy, with no-one in the State believ-
ing that the law requires the State so to act. In such a case some additional
evidence must be adduced. There may be an express statement asserting
that the State was acting under legal constraints. For example, when
 International Law
France and the United Kingdom built the Channel Tunnel each of them
made a public statement to the effect that international law rights of
passage and overflight through the Channel would not be affected. The
subsequent toleration of such passages by France and the United Kingdom
can therefore be read together with that statement to warrant the inference
that the toleration is motivated by the belief that international law requires
the two States to allow the passages.
In the absence of an express statement, there is another way of handling
the matter, which a domestic analogy may help to make clear. As a matter on
municipal contract law, agreements are only legally binding contracts if the
agreement was made by the parties with the intention of creating legal rela-
tions between them. In general, if I buy a bottle of wine, I make a contract
with the wine store; if I agree to meet someone for coffee, I do not enter into
a binding legal contract with them. I can be sued if I do not pay for the wine,
but not if I do not show up for the coffee, even though there were clear agree-
ments in each case. This approach works in domestic law. But I have never,
as yet, announced to the assistants in a shop that I wish to enter into legal
relations with them and only rarely have I turned my mind silently to that
issue. The ‘intention’ is simply presumed by virtue of the context in which
the transaction takes place. The law presumes that all consumer purchases
are concluded with the intention of creating a binding legal relationship,
and that no social arrangements are concluded with that intention. If the
parties intend otherwise, they must make that intention known. The con-
texts that do and the contexts that do not carry the presumption depend
upon social conventions. These are not laid down by law but simply under-
stood and applied by judges as part of the store of what is often regarded as
the ‘obvious common-sense’ matrix of knowledge within which all legal
analysis takes place. In fact, such extra-legal considerations are a powerful
driving force for reform in the law—for example, when a relationship pre-
viously viewed as informal comes to be regarded as having a legal basis (the
rights of unmarried co-habitees are a domestic law example).
A very similar process operates in international law. It is generally
understood by international lawyers that certain matters are regulated by
law and others are not. Diplomatic immunity, for example, is undoubtedly
regulated by law. If a State abstains from prosecuting a diplomat who is
known to have broken the law, it is presumed that the State ‘knows’ that
international law requires that abstention, and that the State’s abstention
is motivated by the legal obligation. Opinio juris is presumed to exist. If a
practice, such as the giving of foreign aid, is generally acknowledged to fall
outside the scope of legal regulation and to be a matter of policy lying
within the discretion of each State, opinio juris will be presumed not to
 How International Law is Made 
exist. It will always be possible to find borderline cases, where opinion is
divided as to whether or not the matter is regulated by law. In such cases,
as in comparable circumstances in municipal law, each side will argue its
case as best it can. State practice, international law textbooks and articles,
resolutions of international organizations, and any other evidence sup-
porting the proposition may be cited. If the matter is not resolved, the two
sides may refer the question to an international tribunal; but in the great
majority of cases they do not. They simply maintain their different views
and get on with the business of negotiating over the various links that bind
them together.
I noted earlier that it was possible to have ‘instant’ rules of customary
international law in circumstances where there is an evident global con-
sensus upon the rules in question. Little or nothing in the way of lapse of
time or proof of State practice is required. The implication is that State
practice is not essential as a component of customary international law.
This is indeed the conclusion that reflection on the fundamental nature of
international law would suggest. If the rules derive their authority from
the fact that States have consented to be bound by them, proof of that
consent should be enough to establish that they are bound. What, then, is
the role of State practice?
State practice is important for two main reasons. First, States rarely
make abstract declarations of acceptance of rules of law. The outer space
resolutions are exceptions to the usual practice. How, then, are we to know
if a State has accepted a rule? As I explained above, if the matter is
acknowledged to be one regulated by international law, and the State has
acted in conformity with the supposed rule of international law, opinio
juris will be presumed. Evidence that many other States accept the rule in
question supports that presumption. It is reasonable to presume that a
State accepts a putative rule of international law if all or most other States
have accepted it. The second reason is that international law is pragmatic.
Many of its rules and principles are crafted so as to ensure that the law does
not depart markedly from the realities of international life. There would
be little point in ‘accepting’ a rule verbally if States in fact acted inconsist-
ently with it. Hence, it is said to be necessary to show that the rule is
evidenced in the practice of States. Both of those reasons give to State
practice an essentially evidential role. The theoretical source of the binding
nature of the rule rests in the opinio juris.
..    
That central role of opinio juris has important implications. If two States can
both be shown to have accepted a particular rule as a rule of international
 International Law
law, they should in theory be bound to observe it. It would be a bilateral rule
of customary international law, a local custom. The possibility of local cus-
tom was admitted by the ICJ in the Right of Passage case in . Portugal
claimed that there was a right of passage over Indian territory between the
Portuguese colonial enclaves of Dadrá and Nagar-Aveli and Damaõ in
India. There is no general right to pass over the territory of a foreign State,
but Portugal argued that such a right had in the past been asserted by
Portugal and accepted by the authorities of what was at the time British
India. The Court found that a long-established practice between two States,
accepted by them as regulating their relations, had generated a local custom
binding upon them, permitting civilian (but not military) transports
between the enclaves.
Other local or regional customs have been found to exist. In the Asylum
case in  the ICJ accepted that there was a body of regional customary
law in Latin America concerning diplomatic relations. There was also
quite clearly a Latin American Law of the Sea during a good part of the
late twentieth century, as I shall explain shortly. One of the most devel-
oped regional systems in the twentieth century was the body of Socialist
international law, expounded by jurists in the former Soviet bloc. That
contained a number of specific rules that were distinct from the general
rules of international law. For example, a principle of socialist proletarian
internationalism permitted one State to render ‘assistance’ to another if
socialism in that other State was under fundamental attack. This prin-
ciple, known in its broader political formulation as the Brezhnev doctrine,
offered a (retrospective) legal justification of Soviet invasion of
Czechoslovakia in . The doctrine runs directly counter to the prin-
ciple of non-intervention in the domestic affairs of foreign States, which
is one of the fundamental principles of international law. While it is often
regarded as no more than a cynical rationalization of Soviet dominance
(despite its symmetry with the practice of the United States and its
western allies), the Brezhnev doctrine was rooted in a distinctive and
well-established conception of the international law applicable between
socialist States. That is not to say that the analysis was correct as a matter
of international law: but there is a legal argument to be considered and not
simply dismissed.
There are other regional orders. The most highly developed is EU law.
Though the detailed rules and regulations of EU law are based upon
treaty provisions, there are more fundamental legal principles applicable
to the Member States, concerning their relationship to each other and to
the organs of the EU. The Commonwealth is another example. States
within the British Commonwealth treat each other somewhat differently
 How International Law is Made 
from non-Commonwealth States, which is why the United Kingdom has a
Foreign and Commonwealth Office (Commonwealth States not being tech-
nically ‘foreign’), why Commonwealth States have High Commissioners
rather than Ambassadors, and why some Commonwealth States exclude
disputes with other Commonwealth States from the category of disputes
which they are prepared to refer to the ICJ. A case could be made out for
other regional orders, such as that applicable between Islamic States; but
enough has been said to make it clear that it is wrong to regard international
law as a monolithic system. It is a complex system within which local and
regional variations are accommodated.

..  

The Right of Passage case might be said to have established that the consent
of two States to be bound by a particular rule is sufficient to bind those
States to comply with the rule. The correlative proposition, that the consent
of a State is necessary for the State to be bound by a rule, is also supported by
the case-law of the ICJ. In the Anglo-Norwegian Fisheries case in  one
question concerned the validity of Norwegian claims to measure its fishing
zone from a notional straight baseline connecting the headlands of certain
fjords, rather than from the low-water mark which is the normal baseline.
The United Kingdom, whose fishing vessels had been excluded from large
areas of the sea by Norway in reliance upon these straight baselines, tried to
prove that State practice established a rule that no straight baseline could be
more than ten miles long. That would have invalidated several Norwegian
lines, some of which were more than thirty miles long. The United
Kingdom failed to adduce enough evidence of State practice to persuade
the Court that there was any such ten-mile rule. The significant point,
however, is that the Court said that ‘in any event the -mile rule would
appear to be inapplicable against Norway inasmuch as she has always
opposed any attempt to apply it to the Norwegian coast.’
That passage reflects what is known as the ‘persistent objector’ principle:
that is, the principle that any State that has from the outset of a course of
State practice made known that it does not consent to be bound by the
rule, will not be bound by that rule. The principle is a natural consequence
of the view that international law is based upon the consent of States. The
objection must be persistent, and be raised before the practice hardens
into a rule of law: States have no right to opt out of rules that have already
become binding upon them. If they were to have such a right, no rule of
international law would in practice have any binding force, and that would
make a nonsense of the international legal system.
 International Law
In practice, very few States persistently object, and to very few rules of
law. The Norwegian objection to the ten-mile limit on straight baselines is
one example; the objections by the United Kingdom and the United
States to claims to maritime jurisdiction in excess of three nautical miles,
maintained up to the s and s, is another. In the latter case the
United Kingdom was in the habit of writing formally to any State laying
claim to maritime jurisdiction extending further than three miles to say
that ‘Her Majesty’s Government are obliged to place firmly on
record . . . that they do not recognize territorial jurisdiction over waters
outside the limit of three miles from the coast; nor will they regard British
vessels engaged in their lawful pursuits on the high seas as being subject,
without the consent of Her Majesty’s Government, to any measures
which the [coastal State] Government may see fit to promulgate.’ That is a
good example of an international protest, of the kind upon which persist-
ent objection depends.
Persistent objectors face considerable pressures. Take, for example, the
United States’ insistence upon observance of the three-mile limit of the
territorial sea, and of rights of innocent passage through the territorial sea
for all ships. Its main concern was to preserve its navigation rights in the
seas. If it had done nothing in practice to oppose claims by States that were
inconsistent with those rights, it would have risked fatally undermining its
policy of objection. A tribunal, faced with the question of the legality of
the more extensive claims, might have regarded inaction as a sign that the
United States accepted the claims in fact even though its rhetoric denied
their validity: tribunals always tend to prefer to rely on facts rather than
rhetoric. It was therefore necessary for the United States to demonstrate
its rejection of the claims. That was done through the prolonged ‘Freedom
of the Seas’ programme, in which the United States Navy deliberately
asserted passage rights through foreign waters in defiance of the claims
that it refused to accept. Those assertions of passage rights entailed
substantial costs. Apart from the considerable cost of sending naval units
anywhere, in some cases the coastal State sought physically to enforce its
claims. In the Black Sea, for example, there were instances of Russian
(then Soviet) warships ‘bumping’ US warships in an attempt to force
them out of the twelve-mile territorial sea claimed by the then USSR.
Bumped warships, like bumped cars, need to be repaired. That too costs
money, and ties up naval units that may be required on operations else-
where. Then there is the political cost. By the late s almost all other
States had accepted the validity of claims to twelve-mile territorial seas.
For United States’ delegates to turn up at international conferences and
repeatedly oppose measures premised upon a twelve-mile territorial sea
 How International Law is Made 
was at best tedious and at worst a damaging diversion from more fruitful
co-operation. And the active assertion of United States opposition to
these claims would inevitably be seized upon by those wishing to repre-
sent the United States as a self-interested State prepared to use military
force in order to have its way. Such factors have to be weighed in the
balance when asking—as governments must—if persistent opposition to
the particular rule of international law is worthwhile. And of course those
States whose claims are resisted will also have to make similar calculations.
Those who run States generally appreciate a quiet life as much as anyone
else: the pressure for compromise is evident.
There is another reason why persistent objectors are few. As is, I hope,
now clear the processes for creating customary international law favour
rules that are likely to be broadly acceptable to other States. If a particular
practice were widely opposed, it would be unlikely to have gathered the
weight of State practice and opinio juris necessary to translate it into a rule
of customary international law, and so no question of persistent objection
would arise. Where practices fail to take hold as emergent rules of cus-
tomary international law the States advancing them may recast the prac-
tice. The invasion of Iraq in  furnished a good example. Having failed
to attract any support for the ill-conceived and barely coherent argument
that States have a right to intervene in other States where the UN Security
Council is prevented from directing matters by an ‘unreasonable’ use of
the veto, the United Kingdom and United States fell back on other argu-
ments in support of the invasion.
Shifts in argument are not necessarily duplicitous. The decision to
intervene in another State, like all other decisions taken on behalf of a
State, always has a non-legal, political motive. Even where a State refrains
from taking some action that is forbidden by a rule of international law
that is expressly discussed in policy-making meetings, its (in)action has
extra-legal, political motives. But international law is concerned with the
reasons for acting, not the motives for acting; and if a State can find a
coherent and persuasive justification for its action, well and good. It is,
accordingly, natural that States should seek the most persuasive justifica-
tion from a range of justifications that may be open to them, abandoning
or not raising less persuasive arguments. Sometimes a State will retreat
more or less entirely from a legal claim. In the s Chile advanced the
concept of the ‘presential sea’, an area of the high seas beyond the limits of
Chile’s natural jurisdiction in which it claimed certain preferential rights
over the exploitation of marine resources. That claim met with wide-
spread rejection. It was not abandoned by Chile; but it did mutate into an
essentially political and moral, rather than a legal, claim, in which Chile
 International Law
sought to advance its special interests in those seas within the framework
of the existing law.
These are instances of the ways in which States avoid pressing claims
that they know will be strenuously opposed. It is because of the avoidance
of opposition that there are so few cases of persistent opposition. And even
where some States begin as persistent objectors, the costs of holding out
may be so high that in practice they seek an acceptable compromise and
come into line. The abandonment in the s by the United States of its
opposition to maritime claims in excess of three miles, in the wake of a new
consensus that preserved passage rights through the wider maritime
zones, is a good example.
Some writers have doubted the validity of the principle of persistent
objection, regarding it as an anachronistic survival of the nineteenth-
century consensualist view of international law. But once the limited
scope of the principle, and its extremely limited invocation in practice, are
understood, it is hard to see why such doubts persist. It is plainly right that
a State should not be bound by obligations set out in a treaty to which it
is not a Party. Why, then, should other States be able to bind the State
by claiming that their practice has generated a rule of customary inter-
national law, if (and only if) the State has persistently made known its
objection to the rule? The question is not purely rhetorical. If inter-
national law is to be a coherent system, it needs to explain the bases upon
which obligations arise. This brings us to the topic of jus cogens.
.. J U S C O G E N S
In two sets of circumstances, however, there are reasons for imposing rules
of customary international law upon dissentient States that are theoretic-
ally persuasive and, more importantly, accord with the practice of States.
In each case the rule is binding for reasons that dispense with the need to
refer to opinio juris.
First, there are some rules or principles that are logically necessary. The
customary law rule that States are bound by their treaty obligations (pacta
sunt servanda) is one such rule. Without that rule, international law simply
could not operate as a legal system: States would be free to disregard treaty
commitments at will; States could not make truly binding commitments.
No State, therefore, could be allowed to persistently object to the rule that
it is bound by its treaty obligations, without destroying the basis of the
legal system. This is not strictly an exception to the requirement of
consent, because logically necessary rules do not ‘arise’: they have always
been necessarily implicit in the system, and so no State could have the
opportunity to object to them from the outset of their emergence.
 How International Law is Made 
There is a true exception in the case of certain rules that embody what
are regarded as uncompromisable moral principles. One example is the
rule prohibiting genocide. If two States make an agreement—a bilateral
treaty—of military co-operation which provides for joint participation in
an operation to liquidate members of a particular ethnic group in a neigh-
bouring State, and one of the States subsequently seeks to enforce the
treaty against the other, it is inconceivable that any modern international
tribunal would uphold the treaty. It would not matter if the States had
consistently objected to the emergence into customary international law
of the prohibition on genocide. I think it is a practical certainty that those
sitting on the tribunal would refuse to uphold the treaty even if no specific
rule of law required them to do so, because it is incompatible with the most
basic moral imperatives to order the upholding of such an agreement.
Some moral principles are so clear-cut, and so strong, that exceptions to
them cannot be tolerated in any civilized legal system.
There is also a category of rules or principles of customary inter-
national law that admit of no derogation: that is to say, States may not escape
their binding force either by persistent objection or by making agreements
to disregard the rule. These are the ‘peremptory rules of international
law’, also known as rules of jus cogens. Quite what those rules are, pre-
cisely, is not easy to say. There are generally accepted examples: the prohi-
bitions of the waging of aggressive war, and of genocide, and of slavery,
and of piracy (the latter a curious historical anomaly, elevating armed rob-
bery and attacks at sea above the level of the general run of crimes of vio-
lence). There are other, more controversial candidates: the prohibition on
racial discrimination (at least in the form of apartheid), the principles of
self-determination of peoples and of permanent sovereignty over natural
resources, and perhaps also the prohibitions on the acquisition of sover-
eignty over the high seas and outer space. The difficulty lies in knowing
how to resolve disputed cases.
Article  of the Vienna Convention on the Law of Treaties defines a
rule of jus cogens as ‘a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character’. That leaves the
judgement in the hands of ‘the international community of States as a
whole’, a concept that is not defined, although disputes over questions of
the effect of jus cogens on treaties may ultimately be referred to the ICJ for
decision. But this does not entirely remove the problem. If it is necessary
that all States accept that a rule is a rule of jus cogens, no problem could
arise, because there would be no dissentients. If it is enough that most
 International Law
States regard a rule as a rule of jus cogens (and this is much the better
interpretation), some writers have said that there is a paradox. If the rules
start off life as ‘ordinary’ rules of public international law, and then
achieve the ‘super-normativity’ of jus cogens, how can it be that a State that
was never bound by the rule as an ordinary rule suddenly becomes bound
by it as a rule of jus cogens? One possible answer is apparent if it is supposed
that the category of jus cogens contains only rules that are either logically or
morally necessary, in the senses that I outlined above. States become
bound by the rules, whether or not they consent, because international law
cannot admit that they are not bound by them if it is to retain its coherence
and even a minimal moral authority. Those who argue for a wider category
of norms of jus cogens must find another answer.
.. 
Though there is no established legal doctrine to this effect I think that
there is another category of ‘unavoidable’ norms, sitting alongside the
rules of jus cogens. These are the norms that are bound up in what we might
refer to as legal ‘institutions’.
International law entitles States to do certain things that are tantamount
to establishing institutions (in the sense that we say that the church or the
crown is an institution). For instance, States are entitled, but not bound,
to claim a -mile Exclusive Economic Zone (EEZ) off their coasts, in
which they enjoy certain rights in respect of marine resources and the
marine environment; and States are entitled, but not bound, to accept the
jurisdiction of the ICJ over legal disputes to which they are parties. If a
State chooses to exercise the right in question I think that it must, as it
were, sign up to the entitlement on the terms on which international law
offers it. A State may not claim the rights in an EEZ but refuse to accept
the concomitant obligations, such as the obligation to allow freedom of
navigation through the EEZ to ships of other States. If the State expressly
claims an EEZ it impliedly accepts all the rights and obligations that attach
to the legal institution of the EEZ as a matter of customary international
law. Nor may it accept the jurisdiction of the ICJ but refuse to accept the
right of the Court to exercise its incidental jurisdiction by prescribing
provisional measures, for example. In other words, there are some rights
that come ‘bundled’ with other rights and duties, and from which they are
inseparable. A State must claim the whole bundle, or none of it.
A State may, however, decide not to exercise all of the rights that come
bundled in the institution. A curious instance of the latter phenomenon
exists in the Aegean, where Greece maintains a six-mile territorial sea claim
over the sea and seabed but a ten-mile claim in respect of the superjacent
 How International Law is Made 
airspace—a position perhaps best understood as a ten-mile territorial sea
claim in which Greece chooses, because of political tensions with Turkey
over maritime claims in the Aegean, to forego its rights over the sea and
seabed in the outer four miles.
..    
The account of customary international law that I have given contains
within it an explanation of how that law changes. Take, for example, the
claim to control over the resources of the seas. At the beginning of the
twentieth century most States claimed jurisdiction over a belt of sea
stretching three miles from the coast, though a few claimed six or twelve
miles. There were no claims to fisheries zones of more than twelve miles.
In the late s a number of Latin American States, observing the ease
with which the United States had arrogated to itself the continental shelf
resources off its coasts by issuing the  Truman Proclamation, made
their own claims to extended maritime jurisdiction. Those on the west coast,
where the Andes plunge steeply into the sea leaving only a very narrow belt
of continental shelf, benefited little from a claim to seabed resources.
Their economies rested heavily upon fishing. Some of them decided that
if it was acceptable for the United States to assert its jurisdiction over the
resources off its coasts that it was able to exploit, it should be acceptable
for them to do the same and to assert jurisdiction over the fish resources
off their coasts. They made claims to -mile maritime zones in which
they had the right to control access to the resources, including the fisheries.
For instance, Chile, Ecuador, and Peru made -mile claims, and joined
in the  Declaration of Santiago to assert the right of all States to such
maritime zones. Other States outside Latin America refused to accept the
validity of the -mile claims which, unlike the United States claim over
seabed resources, were thought to threaten important high seas freedoms.
In legal terms, there was by the early s a special custom among the
Latin American claimants (then including most States in South America)
to -mile zones; and on the other hand there was persistent objection on
the part of many other States, notably major maritime States such as the
United States, the USSR, and the United Kingdom. Had, say, Chile
arrested a Peruvian vessel fishing  miles off the coast of Chile, Peru
could not have objected without abandoning its own claim. Having made
a similar claim itself, Peru could not object that Chile’s claim to extended
fisheries jurisdiction violated international law. If, however, Chile had
arrested a British vessel in the same place, the position would have been
different. The United Kingdom had persistently objected to these claims:
I quoted from one of the protests above. There was plainly no ‘general
 International Law
practice accepted as law’ supporting the claims: they were a Latin
American aberration. Had the United Kingdom taken the issue to an
international tribunal, the tribunal would have said that the arrest violated
international law. Similarly, if a State—say, Egypt—that had neither
expressly accepted nor expressly rejected the -mile claim were to have
had one of its ships arrested, a tribunal would have held that the arrest was
unlawful, because the ‘general’ practice was not to recognize the claims.
It is convenient to refer to this situation as a local or regional custom, but
there is no need for the States bound by it to be in the same geographical
region. If an African State had made a -mile claim at the time (which did
not in fact happen), and if one of its ships had been arrested by Chile, the
position would have been the same as in the case of an arrest of a Peruvian
ship. The African flag State having itself made a -mile claim, it could not
deny the validity of Chile’s claim without abandoning its own claim.
At that point there were at least two rules of customary international law
in effect concerning the extent of jurisdiction over fisheries: one applicable
among the Latin American -milers, and another applicable to the rest
of the world.
In the late s attention again focused on fisheries, this time because
of the overfishing of many commercial stocks, blamed on industrialized
distant-water fishing fleets. Many States, particularly those that had not
been independent when international law established the freedom of
fishing on the high seas, resented the right of distant-water fleets to
plunder the fisheries off their coasts and sought to persuade the UN
Conference on the Law of the Sea, which met throughout the s, to
accept the right of States to -mile exclusive fishery zones. By the mid
s it was clear that there would be a broad consensus in favour of this,
so long as passage right and certain other rights of foreign States were
safeguarded. More States accordingly began to make unilateral claims to
-mile zones. Each new claim put one more State in the -mile camp,
and took one out of the opposing camp. By the early s the balance
between the two camps had wholly changed. Most coastal States claimed
or had accepted the legality of -mile zones. There was a new ‘general
practice’, so that any State that could not show that it had persistently
objected would have been bound to accept the validity of the zones.
In that way a ‘new’ rule of customary international law had come into
existence. More precisely, the balance between the two camps had shifted,
so that the old ‘special custom’ in Latin America became the general
practice and the general rule of customary international law. Apart from a
few persistent objectors, the adherents of the old ‘general’ rule defected so
that it withered away. That is how rules of customary international law can
 How International Law is Made 
change. (No doubt some readers will wonder what the position was where
the two camps were of roughly equal size. If a tribunal had been obliged to
decide the issue at that State, in a dispute brought by a State that had
neither expressly objected to the new rule nor expressly accepted it, the
tribunal would no doubt have tried to determine which way the tide was
flowing and to decide in accordance with the rule that it considered the
rule of the future. In practice, however, it must be admitted that much
would have turned on the views of the particular judges. For that very
reason States tend to avoid litigating at such times, preferring to wait until
the legal position and the probable outcome of the litigation becomes
clearer.)
It should be evident that it is a mistake to think of international law as
a monolithic body of law. The presence of local, regional, and special
customs, and of the rare cases of persistent objection, mean that we can
never properly speak of ‘the’ rule of international law, but only of the rule
applicable to the particular States in question. In practice, however, the
divergences from the rules that are (in a descriptive, but not a prescriptive
sense) generally applicable are minor. Most rules are accepted by almost
all States in the world. That is why textbooks on international law present
the law as if it were a universally applicable system.
I should turn now to the second major source of international rules:
treaties.
 International Law

. 
An international agreement may be called a Treaty, a Convention, an
Exchange of Notes, a Memorandum of Understanding, a Covenant, a
Charter, or any other suitable name. It is merely a matter of style, with the
more august titles being given to the more important agreements. But all
are subsumed under the broad heading of ‘treaties’; and the Law of
Treaties (as largely codified in the Vienna Convention on the Law of
Treaties) applies to all such agreements. Treaties rank first in Article  of
the ICJ Statute, and for good reason. Customary international law is in
essence the body of law that applies by default; and within the limits set by
the doctrine of jus cogens, to which I return below, States are free to vary its
rules by agreement. It is in this respect similar to the body of tort law or the
law of obligations, which individuals are free to vary by contract. Thus,
treaties supersede customary international law: if States have made an
agreement, the rights and duties of the parties are determined by the
treaty, not by customary international law. Treaties are therefore the first
place to look in order to determine a State’s rights and duties. Hence their
priority in Article  of the International Court’s Statute.
That priority accords with political reality. If a State concludes a treaty,
it makes a solemn commitment. States are expected to fulfil their commit-
ments. If they were free to renege upon them or disregard them, it would
be impossible for secure international arrangements to be made, and the
consequent unpredictability would preclude all but the most rudimentary
and short-term international dealings. That is reflected in the almost
mystical significance that has been given to promises, contracts, and
treaties throughout history.
Treaties—international agreements—are one of the two most elemen-
tary forms in which obligations are expressed, commands being the
other. In the Koran and the Jewish and Christian scriptures God begins
by issuing commandments to Adam, but makes covenants with Noah and
Abraham. Both the commandments and the terms of the covenants are
regarded as demanding compliance: that is their essence. But commands
depend upon the existence of a superior who can issue them to an infer-
ior, and outside the imperial context that relationship does not exist in
international relations. For most of recorded history, much of the world
has in fact been organized in one empire or another, and dealings between
peoples have in many respects been conducted through the structures of
empire. But, as far as we know, there has never been only one empire
(a condition now meretriciously courted with the bombastic terminology
of the ‘unipolar world’ and the ‘single superpower’), and at least some
 How International Law is Made 
‘international’ dealings have been conducted between political units on
terms of broad equality. Treaties have always been a feature of the land-
scape. Jean Barbeyrac, an eighteenth-century French jurist who trans-
lated several of the seminal early texts on international law, published in
 a collection of treaties reaching back into the second millennium
BCE. There is, for example, a Sumerian treaty from around  BCE on
the Stele ofVultures, now held in the Louvre, which records the establish-
ment of the boundary between the kingdoms of Lagash and Umma.
The earliest treaties appear to have been made in the context of reli-
gious ceremonies, the parties calling upon the gods to witness the agree-
ment and to sustain it, usually by visiting untold miseries upon anyone
who violates the treaty. Ancient Greek treaties were also underwritten by
the gods; and this may have been the case also for Roman treaties. (The
tradition survives in Wagner’s Ring cycle, in which all the treaties that
Wotan must protect are engraved on the shaft of his spear.) Treaties were
taken similarly seriously in Asia. The ancient Chinese practice was to
make a sacrifice so that its blood, spilled into the earth and smeared onto
the lips of the parties, would bear witness to the making of the treaty.
Now that the mystical trappings of treaty-making have all but disap-
peared (though there seems still to be a belief that the more notable treaties
must be signed with expensive pens at garlanded tables, and held in fine
leather folders), the Law of Treaties may appear to be in large part ‘lawyer’s
law’. That appearance is deceptive, because there are important political
issues lying close to the surface.
..  
All States may conclude treaties; but not only States may conclude
treaties. In the nineteenth century, for example, Great Britain made many
treaties with what the Index of British Treaties – describes as
‘African Tribes, etc’; and many Indian nations entered into treaties with
the United States. Indeed, a significant part of the process of colonization
was carried out, not by conquest or by the rarer fiction of treating lands as
being empty and open to occupation by the colonial power, but rather by
the making of agreements with the indigenous communities who put
themselves into a relationship of subordination with the colonial power.
Political entities that were not sovereign States continued to become par-
ties to treaties throughout the nineteenth century.
Treaties are made on behalf of States by government officers within
whose legal competence the subject-matter of the treaty falls. For
instance, an agreement for the supply of natural gas might be made by
the Minister of Energy, and an agreement for the use of military airfield
 International Law
facilities might be made by the Minister of Defence. Heads of State or
Heads of Government, and Ministers for Foreign Affairs, are regarded as
having plenary competence, able to enter into commitments on behalf of
the State in any matter.
Other agents may be authorized to conclude treaties on behalf of a
State, or have their actions subsequently ratified by the State. One of the
most colourful examples is that of Philippe Bunau-Varilla, chief engineer
to Ferdinand de Lesseps, the architect of the Panama Canal project.
Obsessed with the desire to see the canal built and, it is said, his own name
on the treaty under which the United States would build it across the cen-
tral American isthmus, Bunau-Varilla paid $, to the revolutionary
Government in Panama to have himself made Panamanian Ambassador to
the United States. Reading in the newspaper that government officials had
been sent from Panama to the United States to negotiate the treaty that he
was nurturing as his gift to posterity, Bunau-Varilla hastened to secure its
conclusion. Sitting up all night to amend it, he struck out a draft provision
which would have given the United States administrative control over the
canal for one hundred years and replaced it with a provision which appar-
ently gave the United States sovereign rights over the Canal Zone in per-
petuity. Correctly guessing that this offer would prove irresistible to the
United States, Bunau-Varilla managed to persuade US Secretary of State
John Hay to sign what is known as the Hay-Bunau-Varilla treaty three
hours before the train carrying the Panamanian officials arrived in
Washington. Returning to Panama, he persuaded the deeply indebted
revolutionary Government that it could not cope with its debts or with the
displeasure of the United States, both of which problems would be solved
by the prompt ratification of the treaty. Thus it was that the United States
became, for three-quarters of a century, the possessor of sovereign rights
over the Canal Zone that cut right across Panamanian territory.
Most governments are able to conduct their treaty-making in a more
orderly manner, particularly in the case of multilateral treaties. Typically a
delegation composed of officials from the various Ministries concerned
with the subject matter of the treaty, now often accompanied by represen-
tatives of industry and of NGOs, will attend the drafting conference. After
days spent debating drafts in the conference room and negotiating in
smaller groups in the coffee lounges, the delegates will settle on the text
that commands the highest level of acceptance. That text is then signed by
the delegations. But signature merely authenticates the negotiated text: it
usually does not bind the State to comply with the treaty. The position is
determined in each case by what the parties intended: but multilateral
treaties are usually intended to require ratification or ‘acceptance’ (i.e.,
 How International Law is Made 
confirmation of the acceptance of the Convention, even if the Convention
is not subject to domestic processes of treaty ratification) by each State
before it enters into force for that State. Bilateral treaties of limited import-
ance, on the other hand, are often stipulated to enter into force on signature,
without the need for ratification.
The process of ratification varies from State to State, according to the
demands of their respective Constitutions. Practically all States will allow
time for government ministries to consider the implications of acceptance
(and of rejection) of the treaty. Beyond that, procedures differ widely. The
United States, for example, requires the approval of the two-thirds of the
Senate before a treaty can be ratified. The approval of the House of
Representatives is not required; but the House can control budgetary
appropriations and other matters that may be necessary for the imple-
mentation of the treaty, so it is not without influence. Actual or anticipated
opposition within the Senate has resulted in the United States not becom-
ing a party to some important international treaties. For instance, Senate
opposition prevented the United States ratification of the  Strategic
Arms Limitation Treaty (SALT II) after it had been negotiated and signed
by President Jimmy Carter and President Leonid Brezhnev of the USSR.
In an effort to avoid such Senate defeats, the Administration will sometimes
involve Senators in the negotiations. Thus, in  the Senate created a
bipartisan Senate Observer Group which attended the arms control nego-
tiations between the USA and the USSR that produced the 
Intermediate-Range Nuclear Forces Treaty.
In the United Kingdom, treaties do not require Parliamentary approval
before they are ratified. Treaty-making is part of the prerogative of the
Crown—that is to say, the Government. But the Government cannot use
its prerogative powers to alter the rights and duties of persons subject to
English law. That is the issue of principle over which the English Civil War
was fought and won in the seventeenth century. Accordingly, if the imple-
mentation of a treaty requires some modification in domestic law that
modification will have to be effected by Parliament. This gives some indir-
ect Parliamentary control over treaty-making. Even in cases where no
amendment of domestic law is needed, however, the practice has arisen of
laying the texts of treaties before both Houses of Parliament for twenty-one
days prior to their ratification. This is the so-called ‘Ponsonby Rule’,
1
Named after Arthur Ponsonby, one of the unsung heroes of Parliamentary democracy.
Ponsonby was a Liberal MP during the First World War, later becoming a Labour MP and
subsequently leader of the House of Lords. He is credited with the line, ‘When war is declared,
truth is the first casualty’, drawn from his study of black propaganda, Falsehood in War-Time:
Propaganda Lies of the First World War (London: George Allen & Unwin, ).
 International Law
adopted by the Government as a constitutional convention in  and
followed in most cases since that time. The practice was intended to
ensure that ‘secret Treaties and secret clauses of Treaties will be rendered
impossible’ (though it is hard to see how this would work if the
Government decided to keep an agreement secret from Parliament), but
its impact is wider. In principle, a debate can be held on a tabled treaty in
either House; and if the treaty is strongly opposed the Government might
be persuaded not to proceed to ratification. Not all treaties and similar
instruments are subject to the rule. ‘International conventions of a purely
technical character’ which are not subject to ratification are outside the
rule; and some treaties, such as the  Treaty of Mutual Assistance
between France, Turkey, and the United Kingdom, and other instruments
that create legal rights and duties, such as the United Kingdom declar-
ations accepting the jurisdiction of the International Court of Justice,
have also been adopted without following the Ponsonby procedure.
..   
Treaties are bargains struck by those who negotiate them on behalf of the
State. The pause between signature and ratification permits the govern-
ment to decide if the bargain is good enough, if it wishes to proceed to
ratification or prefers to leave the treaty unratified as a dead letter. The
possibility of non-ratification is small in the case of bilateral treaties: the
negotiators will know what their negotiating position is, and if they do not
secure it they will not even conclude a signed text to submit for ratifica-
tion. But in the case of multilateral treaties the possibility is much greater.
The negotiators will do their best to achieve a consensus; but it is very
unlikely that the text will be wholly acceptable to all of them.
At this point a policy choice arises. We might say that every State has the
choice of accepting the treaty as negotiated or of leaving it. That approach
would preserve the integrity of the treaty regime, every State Party being
bound by exactly the same rules, but it might lead to many States choosing
to stay outside the treaty. Alternatively, we might permit States to modify
the treaty in so far as it applies to themselves, accepting some but not all of
the provisions. The modification would be effected by ratifying the treaty
subject to a ‘reservation’—that is, a statement that excludes or modifies
the legal effect of certain provisions of the treaty in their application to
that State.
For example, the  Continental Shelf Convention set out some basic
rules concerning the rights of a coastal State over the resources of the con-
tinental shelf adjacent to its coast. It also contained, in Article , a provi-
sion concerning the delimitation of the continental shelves with those of
 How International Law is Made 
neighbouring States. This stipulated that in the absence of agreement to
the contrary, and unless another boundary line is justified by special
circumstances, the boundary is to be the line of points that are equidistant
from the nearest points on the coast of each of the neighbouring States. A
State might agree with all of the provisions of the  Convention
concerning the basic legal regime of the continental shelf but find the
Article  provision on delimitation unacceptable, perhaps because it fears
the possible impact of the equidistance principle on its coastline and is not
confident that its coastal configuration will be recognized as a ‘special
circumstance’. France, for example, did not wish the delimitation provi-
sions to apply in the Western Approaches/Channel area, where British
possession of the Scilly Islands and the Channel Islands would, under
the equidistance principle, have pushed back France’s entitlement to an
unacceptable extent. As it happened, the  Convention specifically
permitted reservations to the delimitation provision; and France ratified
the Convention with a reservation stipulating that Article  did not apply
in the Western Approaches/Channel area (though the reservation did not
exclude its application to France’s Mediterranean coast, and so Article 
continued to apply to that coast).
The acceptance of reservations makes it easier for States to become
Parties to the treaty and so expand its membership, but does so at the
expense of the integrity of the treaty because not all States Parties would
be bound by exactly the same rules. The choice is one between the maxi-
mizing the number of Parties and maximizing the integrity of the treaty
regime. The question is, who decides? Sometimes treaties themselves
specify that reservations are entirely forbidden, or are freely permitted, or
(as in the  Continental Shelf Convention), are permitted in respect of
certain provisions only. But what is the position where the treaty is silent
on the matter?
The classical view was that reservations could be made only with the
agreement of all of the other States Parties to the treaty. A contrary view was
adopted in the Pan American Union, which favoured reservations as a
means of increasing the acceptance of multilateral conventions. The issue
arose in the context of the  Convention on the Prevention and
Punishment of the Crime of Genocide (the Genocide Convention), for
which the United Nations was the depository, responsible for keeping the
list of States Parties and other data concerning the Convention, including
the date of its entry into force. Multilateral treaties commonly provide that
they shall enter into force after a certain number of States have ratified
2
See the Anglo-French Continental Shelf case ()  ILR p. .
 International Law
them—a device that ensures that States are not dissuaded from early
ratification by the fear that they will find themselves among a handful of
States bound by a treaty that most States reject. It is accordingly important
to know whether a State may ratify a treaty and subject its ratification to a
reservation in circumstances where the treaty does not expressly permit
reservations, and, if a State does so, whether such a State is to be counted
in the total of ratifying States. The  Genocide Convention is one of
many multilateral treaties that contain no provision dealing expressly with
reservations. The International Court of Justice, giving an Advisory Opinion
to the UN General Assembly, held that reservations can be made so long as
they are compatible with the object and purpose of the treaty. It also held
that other States Parties may accept or reject the reservation, and that a State
rejecting the reservation may consider the reserving State not to be a Party
to the treaty. In other words, the International Court adopted the ‘Pan
American’ approach, although it emphasized that it was ruling on the
matter in the specific context of the Genocide Convention, whose object
and purpose implied that it was the intention that as many States as possible
should ‘participate’, so that the exclusion of any (reserving) State ‘would not
only restrict the scope of its application, but would detract from the author-
ity of the moral and humanitarian principles which are its basis’.
The same approach was adopted in the Vienna Convention on the Law
of Treaties. Reservations compatible with the object and purpose of the
treaty may be made, unless it appears from the limited number of negotiat-
ing States and the object and purpose of the treaty that the application of
the treaty in its entirety is an essential condition of the consent of each State
to be bound by it. A regional disarmament treaty would be an example of
such a treaty. If another State Party accepts the reservation, the treaty is
modified in accordance with the reservation, but only in respect of the
treaty relations between the reserving and the accepting State. The
accepting State remains bound by the unmodified treaty in its relations
with all other States Parties who have not made reservations.
If another State Party objects to the reservation (as the United
Kingdom rejected the French reservation to the  Continental Shelf
Convention) then the reservation obviously cannot take effect to modify
the treaty. But it is equally clear that the reserving State has not consented
to be bound by the provisions to which the treaty relates. Accordingly, the
Vienna Convention stipulates that in such circumstances the treaty provi-
sions to which the reservation relates do not apply as between the reserving
and the objecting Parties, to the extent of the reservation.
3
ICJ Reports , p.  at p. .
 How International Law is Made 
Thus, in the Anglo-French Continental Shelf case, the United Kingdom’s
rejection of the French reservation meant that Article  of the Continental
Shelf Convention did not apply as between France and the United
Kingdom in relation to the Western Approaches/Channel area, though
Article  would have applied as between the two States if they had been
neighbouring States in any other area of the world. As between the United
Kingdom and France the  Convention thus contained no provision
on delimitation applicable to that area, and the question was therefore
regulated by customary international law (which was more or less the
same as the treaty rule, as it happened).
TheVienna Convention does provide another option: the objecting State
may refuse to accept that the treaty enters into force at all between it and the
reserving State. The presumption, however, is that objection to a reserva-
tion does not preclude the entry into force of the treaty: the objecting State
must express its intention clearly if it does wish to preclude the entry into
force of the treaty.
This approach makes sense if a treaty is regarded as an exchange of
obligations between States and the reservation is regarded as a kind of
counter-offer which would modify the applicable terms of the treaty and
which other States Parties are free to accept or reject. It is a robust,
consensualist, contractarian approach. But not all treaties are best viewed
as contracts. Human rights treaties, for instance, have the form of agree-
ments between States Parties, to which the consensualist approach could
well be applied. But the substance of human rights treaties is at odds with
their form. Their substance consists of a set of guarantees and rights
adopted for the benefit of individuals who are not parties to the treaties,
including in some cases the right for individuals to petition international
bodies with claims that their treaty rights have been violated by a State
Party. These treaties are more in the nature of pledges by States Parties
than of contracts between them. This distinction has led some scholars to
argue that the Vienna Convention regime is not suitable for application
to human rights treaties.
That argument received powerful support from the UN Human Rights
Committee, which monitors the implementation of certain human rights
treaties including the International Covenant on Civil and Political Rights
(ICCPR). In its  General Comment  on Reservations to the ICCPR,
the Human Rights Committee adopted an approach to reservations at
variance with that in the Vienna Convention. It asserted that it had the
right to decide which reservations were compatible with the object and
purpose of the Covenant, thus denying the States Parties the right to make
that judgement themselves by their acceptance or rejection of a reservation.
 International Law
The Committee made clear that it would not accept either reservations to
provisions that codify customary international law (e.g., the prohibitions
on torture and slavery, and the affirmation of the right of all peoples to
determine their own political status), or reservations incompatible with
the object and purpose of the ICCPR (e.g., reservations to the duty to
respect and ensure all rights on a non-discriminatory basis, or to the duty
to report to the Committee on the implementation of rights). It also sug-
gested that it would generally sever invalid reservations and treat the State
that made them as bound by the Covenant as if the reservation had not
been made. The robust approach of the Human Rights Committee pro-
voked vigorous reactions from several States, including the United
Kingdom and United States, which considered that the Vienna
Convention rules should be applied and objected in particular to the
suggestion that invalid reservations would simply be disregarded.
The question of the effect of reservations remains controversial, despite
further study of the question by the International Law Commission (ILC).
Many would share the view of the ILC that the record of States objecting
to reservations is very poor and patchy and offers no real assurance of
‘quality control’. Even reservations that eviscerate commitments to be
bound by treaties (such as Saudi Arabia’s reservation to the 
Convention on the Elimination of All Forms of Discrimination Against
Women, which states that ‘in case of contradiction between any term of
the Convention and the norms of Islamic law, the Kingdom is not under
obligation to observe the contradictory terms of the Convention’) often go
unchallenged by other States Parties. Few States are so confident of their
own records on human rights, and so altruistic in the conduct of their for-
eign policy, that they are likely to challenge another State on the legality of
its reservation to a human rights treaty. Bodies such as the Human Rights
Committee are the best guardians of the treaties whose implementation
they supervise. On the other hand, it is not surprising that States resist the
seepage of power away from the States Parties and towards such bodies,
which is the practical consequence of what may appear to be abstruse
debates over highly technical rules of treaty law.
One final point should be made concerning reservations. Sometimes
States do not make reservations, but what they call ‘interpretative declar-
ations’—that is, declarations of the meaning that the State considers
some provision of the treaty to bear, and therefore of the manner in
which the State intends to implement that provision. The distinction
between interpretative declarations and reservations is fine. It depends
essentially upon whether the State making the declaration insists that its
interpretation be accepted whether or not it is the ‘correct’ interpretation
 How International Law is Made 
of the treaty. If acceptance of the State’s declaration is a condition of its
consent to be bound by the treaty, it will constitute a reservation unless
its interpretation is held to be correct. As the correctness of the inter-
pretation cannot be known in advance of litigation on the question, any
State that does not share the interpretation will be well advised to treat it
as a reservation and object to it. If it does not, it risks being held to have
accepted the reservation and therefore bound by it under Vienna
Convention rules. If the interpretative declaration is not a condition of
consent, so that the State making it is, as it were, prepared to be told that
it was wrong in its interpretation and to accept the correct interpret-
ation, the declaration will not be a reservation. Its only significance will
be as a piece of practice lending support to one particular interpretation
of the treaty, and as a statement of how the State intends, unless and until
corrected, to interpret it.
..  
In any international dispute where there is a treaty bearing upon the
subject-matter of the dispute, the parties will almost certainly have to
address the question of the precise effect of the treaty. Its words may
clearly support one party’s case. If they do not, the party will probably
argue that when ‘properly interpreted’ either the treaty does support its
case, or the treaty does not apply to the particular circumstances of the
dispute at all. Lawyers put much energy and imagination into treaty inter-
pretation; courts respond by ruling on the submissions; and enough mater-
ial emerges to fuel an entire field of legal analysis and scholarship. There
are discussions concerning the relative merits of the teleological approach
(which looks at the purpose that the treaty was designed to achieve) and
the literal approach (which focuses on the text, as the only certain foothold
in the shifting sands of interpretation). There are debates about the
materials, such as the travaux préparatoires (preparatory works or negoti-
ating history) that are admissible to support or to counter a particular inter-
pretation; and there are debates over presumptions that might be applied
in interpreting treaty texts. Indeed, there are debates over practically
every step in the reasoning process that leads from a treaty text to the
conclusion concerning its effects in a concrete case.
This analysis is largely detached from the reality of treaty interpret-
ation in practice, for the fact is that courts do not rely upon nice distinctions
or the rigid pursuit of particular approaches to interpretation. They are
encouraged to adopt a robust approach by the Vienna Convention on the
Law of Treaties, whose provisions on interpretation are frequently cited.
Article  sets out the basic rule:
 International Law
A treaty shall be interpreted in good faith in accordance with the ordinary mean-
ing to be given to the terms of the treaty in their context and in the light of its
object and purpose.

The Vienna Convention goes on to describe the categories of evidence

that may be referred to in order to establish the ‘context’ (and presumably
also the ‘object and purpose’) of the treaty, and to specify ‘supplementary
means of interpretation’ including the travaux préparatoires that may be
used to ‘confirm’ the ordinary meaning or resolve ambiguities left by a
reading based on the ordinary meaning. In fact most courts—and particu-
larly municipal courts—interpreting treaties do not draw fine distinctions
as to the sequence and purpose for which interpretative aids are applied.
Lawyers are even less restrained, and commonly present a wide range of
material to tribunals as aids to interpretation: monographs and journal
articles, commentaries and summaries produced by one party or another,
implementing legislation—anything that will fit on a photocopier and will
lend some support to the interpretation for which they contend.
If one were to try to distil a rule of interpretation from what tribunals
actually do (rather than what they say they do), it would probably be some-
thing like ‘interpret the treaty as reasonable parties would have interpreted
it if they had faced the questions now before the court’. That is, of course, an
oversimplification: for example, it does not help to settle questions that the
parties could not have foreseen, such as the question whether a reference to
disputes over ‘territory’ in an early twentieth-century treaty should be
interpreted so as to include the continental shelf of a State—a legal concept
that did not come into existence until the middle of that century. But treaty
interpretation is an area in which the returns on abstract theorizing are low,
and diminishing; and there are many other topics to discuss.

..  

The rule that treaty commitments must be observed—pacta sunt servanda—
is one of the most fundamental in international law, and is rooted in an
even more fundamental principle that States must act in good faith. But
no State could be required by the principle of good faith to adhere to a
treaty that was procured by fraud or corruption, or as a result of a
fundamental error, or as a result of coercion. As might be expected, the
Vienna Convention provides that these are all grounds upon which the
consent of a State to be bound by a treaty may be invalidated.
Instances are few, but not unknown. History records that the German
ministers Goering and Ribbentrop physically harassed President Hacha
of Czechoslovakia, and threatened the immediate bombardment of Prague,
 How International Law is Made 
in order to coerce him into signing in the early hours of the morning the
treaty that established a German protectorate over Bohemia and Moravia
in . That, clearly, is coercion. But what of situations where one State
makes it known that unless the other State signs a treaty, it will lose all
manner of economic and political benefits in the gift of the first State? Is
that coercion? Or is that just how the world is?
And what of ‘unequal treaties’, made between a very powerful State
and a weak State which may think that it has no option but to go along with
the wishes of the stronger State? It has been said that treaties procured
by the threat or use of force by imperialist powers during the period of
colonization should be regarded as invalid. In practice, however, this
idea has not taken root, and States have not sought to escape from large
numbers of treaties by pleading coercion. The reasons are plain. What
effect would the renunciation of the treaty have? What practical effects
would have followed if China had purported to terminate the leases and
the cession of the territories around Hong Kong? Would the United
Kingdom have simply walked out of the territory? What would renunci-
ation have done that China could not do by persuading the United
Kingdom to negotiate its withdrawal? It was in the interest of both States
to have an agreed termination of the treaty arrangements.
And sometimes it suits the weaker State to maintain the treaties in
force. Guantanamo Bay is an example. It was leased as a coaling station to
the United States in  by a treaty that some might have expected the
Government of Cuba to renounce as an anachronistic survival of American
imperialism in the Caribbean, or more recently as an offence against
human rights. But one suspects that Cuba (among others) relishes the
international outrage over the holding facility for alleged terrorists, appar-
ently beyond the reach of the law, which the United States established in
Guantanamo. The sight of such discomfort on the part of the United
States, as it approached the fourth decade of its economic embargo against
Cuba, may have appeared to be a price well worth paying for the loss of a
little piece of Cuban territory.
Sometimes treaties may be concluded in breach of the national law of a
State Party, for example because the person negotiating the treaty exceeded
his mandate or because the treaty was concluded without obtaining some
necessary authorization from the Government. International law does not
permit constraints under national law to invalidate treaties. This is another
aspect of the principle that national law may not be raised as a defence to a
breach of an obligation under international law—though not a logical
consequence of it, because the question here is whether an international
obligation was validly created in the first place. The Law of Treaties
 International Law
operates on the basis of ostensible authority. If the State representatives
purporting to conclude the treaty appear to have authority to do so, the
treaty will be validly concluded unless the other party is actually aware of
some defect in the authority of the representatives. The one exception is
where the defect in the authority of the representatives arises from a
manifest violation of a rule of the internal law of the State that is of funda-
mental importance. The requirement for Senate approval of treaties in the
United States would be an example. It is a very well-known rule, which
everyone negotiating a treaty with the United States may be presumed to
understand. Even there, however, the matter is not free of difficulty. Under
US law it is only ‘treaties’ and not, for example, so-called ‘executive
agreements’, that require Senate approval. One wonders what would
happen if a US Administration assured a foreign State that it had the
authority to conclude an agreement without the need for Senate approval.
The Vienna Convention also provides that a treaty is void if at the time
that it is concluded it conflicts with a peremptory norm of general inter-
national law, i.e., a rule of customary international law that allows of no
derogation (a rule of jus cogens). Put in that way the point is almost circu-
lar, because the obvious form that a ‘derogation’ from a rule of customary
international law takes is a treaty which supplants the rule of customary
law as between the parties. To say that a treaty is void if it conflicts with a
rule of customary international law that cannot be modified by treaty casts
little light on the principle. The difficulty is that while all States accept
that a handful of fundamental moral principles (such as the prohibitions
on aggressive war, genocide, and slavery) are to be counted among the
peremptory norms of international law, there is no consensus on what
other rules fall within the category. Because peremptory norms trump
other rules of international law, the uncertainty concerning the content of
this category of norms is a matter of much significance. It is, for instance,
one of the main reasons for France’s decision not to ratify the Vienna
Convention on the Law of Treaties.
The concept of peremptory norms is an important element of the inter-
national legal system, playing a role that corresponds to the rules of public
policy which operate in municipal law to invalidate certain contracts.
International tribunals have relied upon the concept cautiously and rarely.
For many years the International Court of Justice avoided the term, except
in its Separate and Dissenting Opinions. More recently, in the Armed
Activities on the Territory of the Congo and the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide cases the Court
has dared to speak the word, affirming that ‘the norm prohibiting genocide
was assuredly a peremptory norm of international law (jus cogens)’. This
 How International Law is Made 
caution no doubt reflects the continuing controversy over the concept on
the international plane. Curiously, municipal courts appear to be more
willing to base decisions at least partly upon the concept. It has, for example,
been used by United Kingdom courts to explain the non-availability of
State immunity in respect of international crimes.
..    
Treaties are binding, but only within reason. One circumstance in which a
treaty ceases to bind follows naturally from the concept of peremptory
norms. If a treaty, valid when made, conflicts with a peremptory norm that
emerges after the treaty was made, it automatically becomes void and ter-
minates. Examples are rare, but one may be found in the  Aloeboetoe
case, where the Inter-American Court of Human Rights indicated that it
would strike down an eighteenth-century treaty between the Netherlands
and the Saramaka tribe of Surinam under which the Saramakas agreed to
capture and return escaped slaves to the Dutch. Peremptory norms (i.e.,
rules of jus cogens) thus have a potentially destabilizing effect upon treaty
and other relations between States, which is one reason why they remain
controversial.
The other grounds upon which States may be released from treaty obli-
gations are less dramatic. First, a State Party may invoke a supervening
impossibility of performance of the treaty as a ground for terminating a
bilateral treaty or withdrawing from a multilateral treaty. Again, examples
are rare; but the kind of circumstance that this provision (Article ) of the
Vienna Convention contemplates is the drying up of a river indispensable
for the execution of the treaty concerning a hydroelectric project. Such
impossibility may be contrasted with the right to terminate or withdraw
from treaties where a ‘fundamental change of circumstances’ has occurred.
This provision (Article  of theVienna Convention) is now a free-standing
doctrine, but used to be asserted on the basis that every treaty should be
understood to have an implied term that the treaty would stand only so
long as the conditions essential to the consent of the Parties to be bound by
the treaty remained as they were when the treaty was made—the so-called
clausula rebus sic stantibus. For the ‘fundamental change’ doctrine to operate
the change must have been unforeseen. If the Parties foresaw it but
nonetheless concluded the treaty there would be no ground for allowing
termination or withdrawal. The change must affect an essential basis of the
consent of the Parties to be bound; and the change must radically trans-
form the extent of obligations still to be performed under the treaty. If one

4
See, e.g., R v Bow Street Magistrate, Ex p. Pinochet (No. ) []  AC  at .
 International Law
considers the example of a treaty between two States to construct a hydro-
electric plant on a shared river, where the main flow of the river changes its
course as a result of geological activity, one can see the weakness in this
formulation. Building the dam would not be impossible, and the extent of
obligations under the treaty would, literally, not be radically transformed.
It would be possible, but pointless, to execute the treaty and build the dam.
Yet few can doubt that in such circumstances it would make no sense to hold
the Parties to their obligations under the treaty.
Perhaps surprisingly, the fundamental change doctrine is invoked only
rarely. It has been used in cases in the ICJ, such as the Fisheries Jurisdiction
case between the United Kingdom and Iceland, where it was suggested
(unsuccessfully) that the increased threat to fish stocks from over-
exploitation released Iceland from its treaty obligations to the United
Kingdom, and in the Gabcikovo-Nagymaros Dam case between Hungary
and Slovakia where it was argued (unsuccessfully) that changes in the
profitability of a venture and technological developments cumulatively
amounted to a fundamental change. Tribunals are plainly reluctant to rely
on the doctrine.
A fundamental change of circumstances may be invoked as a ground for
suspending, rather than terminating, the treaty; and this option is import-
ant. There may be a fundamental but non-permanent change of circum-
stances. Roads serving the site of the projected dam (to pursue the
hypothetical example raised above) may have been severely damaged by an
earthquake; but one or both of the States may prefer to repair the infra-
structure and proceed with the project after a delay.
The Vienna Convention (Article ) also permits the termination or
suspension treaties in cases of a ‘material breach’ of the treaty. A breach is
‘material’ if it amounts to a repudiation of the treaty or the violation of a
provision essential for the achievement its object or purpose. The right to
terminate or suspend bilateral treaties for material breach is well estab-
lished, and is one of the mechanisms by which miscreant States may be
pressured into compliance with their obligations. An example arose in
the Air Services Agreement dispute in . France refused to allow the
decanting of the few passengers flying to France on large planes from the
west coast of America via London onto smaller planes for the London to
Paris leg of their flight. Such a ‘change of gauge’, as the change in the size
of aircraft is known, would have put French airlines at a commercial
disadvantage, because the French airlines would naturally fly large aircraft
all the way to and from Paris. The United States regarded the French
action as a breach of the  Air Services Agreement between the two
States and responded by suspending landing rights for Air France flights
 How International Law is Made 
to Los Angeles. The Tribunal which heard the dispute regarded the
suspension of France’s rights under the treaty as a proportionate counter-
measure, justified by the prior French breach of the treaty.
The position regarding multilateral treaties is more complex. A breach
by one State may have no real impact upon most other States Parties. For
example, if one of the  or so States Parties to the  Law of the Sea
Convention unlawfully arrests a merchant ship belonging to another State
Party on the high seas (where ships are in principle subject only to the
jurisdiction of their flag States), the arrest directly affects only those two
States. The Vienna Convention sets out, in Article (), the rule that
might be expected: a material breach of a multilateral treaty permits a
State Party ‘specially affected’ by the breach to invoke it as a ground for
suspending the treaty in its relations with the State in breach. (A single
‘specially affected State’ may not terminate the treaty, although termin-
ation may be effected by the unanimous agreement of all the States Parties
other than the State in breach.) The ‘suspending’ State remains bound by
the treaty in its relations with other States Parties.
Sometimes a material breach of a multilateral treaty affects all of the
parties. Breach of a regional disarmament convention would be an example.
If the effect of the material breach is radically to change the position of
every other State Party, every State Party (other than the defaulting
Party—no State may benefit from its own wrong) may suspend the treaty.
Humanitarian provisions in treaties, however, may never be terminated or
suspended on this ground: that rule, set out in Article () of the Vienna
Convention, reflects the belief that the individuals protected by humani-
tarian provisions should never be deprived of that protection as a result of
any unlawful conduct by a State Party.
I have not yet mentioned the most common way in which a State is
released from its treaty obligations: that is, termination in accordance with
the express or implied terms of the treaty. Many treaties provide that they are
to last for a certain period, following which they may be renewed, or in some
cases are automatically renewed unless notice of termination is given. If the
treaty contains no such provision, it may still be terminated by the giving of
notice (not less than twelve months, under Article  of the Vienna
Convention), if it can be established that the Parties intended to allow
denunciation or withdrawal. Treaties establishing borders are examples of
treaties that will never be held to have an implied right of denunciation.
A bilateral treaty of friendship and co-operation, on the other hand, may well
be thought to be of a character that implies a right to terminate it on notice.
Before leaving the subject of the termination or suspension of treaties
I should mention a doctrine that has a similar effect: the defence of
 International Law
necessity. The defence is not found in the Vienna Convention, no doubt
because it is not classified as part of the Law of Treaties but as a part of the
law of State responsibility. It operates to ‘preclude the wrongfulness’ of
acts taken by a State that are the only means for the State to safeguard an
essential interest against a grave and imminent peril, although the defence
is available only as long as the act does not seriously impair an essential
interest of a State towards which the obligation exists, or of the interna-
tional community as a whole. A State may therefore plead that it was ‘nec-
essary’ to act in breach of its treaty obligations, in a way comparable to the
invocation of impossibility or of a fundamental change of circumstances
as a ground for termination or suspension. There are significant differ-
ences. The necessity defence does not terminate or suspend the treaty (or
particular parts of it, if the obligations are severable): it merely excuses
non-performance. And of course the requirements for invoking the
defence are different: necessity may be invoked in circumstances that fall
short of literal impossibility of performance, and where there is no change
in the extent of the obligations of the State under the treaty.
The necessity defence has been enshrined in the International Law
Commission’s Articles on State Responsibility, rather to the surprise
of those who thought that many States would resist the inclusion of such
a powerful and open-ended defence. It is uncertain how wide an interpret-
ation the defence will be given, but its invocation by Argentina to excuse
its failure to comply with treaty obligations towards foreign investors
during its severe financial crisis of – has met with mixed success.
The necessity defence was rejected on the facts (but acknowledged to exist
in principle) in one case conducted under the auspices of ICSID, CMS
Gas Transmission Co. v Argentine Republic, but accepted in another, LG&E
v Argentine Republic. However the defence comes to be applied, it will not
easily be made available to States.
..  
The circumstances in which treaties may be terminated or suspended
under the Vienna Convention rules are far from covering the whole range
of circumstances in which States may wish that they could escape from or
modify some of their treaty obligations. International law has no principles
that govern the renegotiation of treaties in circumstances where perform-
ance becomes onerous or intolerable or unacceptable for some other reason;
but there are various mechanisms that play a similar role. Some treaties and
other agreements may themselves provide for the renegotiation of particu-
lar provisions in such circumstances: many agreements between States
and foreign investors giving rights to exploit mineral resources contain
 How International Law is Made 
such provisions. Others provide more generally for the amendment of
the treaty. Some of the most important international treaties have been
concluded as ‘framework’ treaties, with basic provisions in the body of the
treaty supplemented by detailed regulations set out in protocols which
can be amended more easily than the main treaty. For example, some
International Maritime Organization (IMO) treaties provide for a ‘tacit
amendment’ procedure under which amendments to detailed technical
provisions are adopted by a majority vote and the amendments then
become binding upon all States Parties unless they positively reject the
amendment. There have also been plans, as yet unrealized, to create inter-
nationally agreed mechanisms for the renegotiation of government debts
in situations where States face a financial crisis.
In the absence of such express provisions the parties are left to their
own devices. They may choose to renegotiate the treaty. They may
denounce the treaty. They may decide to act in breach of the treaty, in
which case the other parties may tolerate the breach and thereby effect a de
facto amendment of the treaty, or object and seek some remedy for the
breach. But whatever happens, the result will involve some renegotiation
of the relationship between the Parties. This is an inevitable consequence
of the primacy given to ensuring that States comply with the treaty
obligations that they have assumed, but only with those obligations. While
particular treaties and clauses may appropriately be made subject to renego-
tiation procedures, it is by no means the case that such procedures could
be devised for all treaties, or that all treaties would benefit from them.
..     
Treaties bind only the States parties to them. They cannot in principle
create rights or obligations for third States without their consent—and
consent amounts in essence to an extension of the treaty relationship. This
principle is, however, subject to an important modification in respect of
treaties which are intended to create rights for third States. Under the
Vienna Convention (Article ), if a third State gives its assent, it acquires
the intended right; and the assent of third States is presumed. The
Permanent Court of International Justice (the predecessor of the
International Court of Justice) observed in the Free Zones case that ‘it
cannot lightly be presumed that stipulations favourable to a third State
have been adopted with the object of creating an actual right in its favour’.
It is necessary to establish that the Parties intended the third State to have
a right, and not merely a benefit, under the treaty. Nonetheless, treaties
bestowing rights on third States are not so very uncommon. The 
Treaty of Montreux, which recognizes and regulates rights of passage
 International Law
through the Dardanelles and the Bosphorus for ships of all States, whether
or not sailing under the flag of one of the States Parties, is one example.
Where a right is given by treaty, and it is further established that it was
intended that the right should not be revocable or be modified without the
consent of the third State, the right cannot be revoked or modified by the
Parties. That is, however, a very high threshold to cross. One of the few
relatively common circumstances where such irrevocable rights could be
established is the case of peace treaties after wars, where defeated States
have often waived claims against certain States not signatories to the treaties.
The provision on third State rights applies only to rights given to
States: it does not apply to ‘rights’ given to other persons, such as the
‘rights’ given to human beings under human rights treaties. This limita-
tion makes sense within the traditional inter-State framework of inter-
national law, and is probably necessary on pragmatic grounds, too. A third
State beneficiary can consent to the modification of a right; but who would
express consent on behalf of human beneficiaries?
The rule that treaties cannot impose obligations on third States without
their acceptance is more absolute; but even here there is an exception. It arose
in the Reparations case in the International Court in . Count Bernadotte,
the UN mediator in Jerusalem and a Swedish national, was murdered by the
‘Stern Gang’, a terrorist group whose leaders included Yitzhak Shamir, later
Prime Minister of Israel. The UN wished to know whether it could bring
claims for injuries suffered by a UN agent in the course of his duties, or
whether the agent’s national State had to bring the claim, as was the normal
rule in international law. At that time Israel, which might have been the
Respondent State (if it had negligently failed to prevent Bernadotte’s death),
was not a member of the UN. The International Court held, however, that:
. . . fifty States, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into
being an entity possessing objective international personality and not merely
personality recognised by them alone, together with the capacity to bring inter-
national claims . . .
This comes close to creating obligations for non-party States. The ‘object-
ive personality’ of the UN meant that non-party States were obliged to
recognize its existence and accept it as a person on the international stage,
with the capacity to enter into a wide range of international transactions.
It is at least arguable that this notion of the bringing into existence by
treaty of an objective legal status could be applied elsewhere, for example
5
i.e., the  States represented at the  San Francisco conference which established
the UN.
 How International Law is Made 
in the case of treaties that stipulate that certain areas (such as the moon,
the deep seabed, and Antarctica) are not susceptible of appropriation by
any State, and of treaties establishing the permanent neutrality of certain
areas such as the Panama Canal.
The general limitation of the legally binding effect of treaties to States
Parties does not mean that treaties can have no impact upon customary
international law. This question was explored by the International Court
of Justice in the North Sea Continental Shelf and Nicaragua cases, in both
of which the Court was unable to apply a treaty provision that could have
had a key role in the litigation.
In the North Sea Continental Shelf cases (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands) the
provision was Article  of the  Continental Shelf Convention, which
stipulated that the equidistance line would apply in the absence of agree-
ment or special circumstances. But Germany was not a Party to the 
Convention. The neighbouring States, Denmark, and the Netherlands,
argued that the rule embodied in Article  was nonetheless binding on
Germany as a matter of customary international law; and in that context
the Court considered the relationship between treaty obligations and
customary law. It identified three distinct ways in which a rule of law set
out in a treaty text could be an accurate reflection of a rule of customary
international law.
First, the treaty could have codified pre-existent international law. This
was the case, for example, with the  Geneva Convention on the High
Seas, which asserted in its Preamble that it was concluded by the Parties
‘desiring to codify the rules of international law relating to the high seas’.
Second, a treaty may crystallize an emergent rule of customary inter-
national law. This happened with many of the provisions of the  UN
Convention on the Law of the Sea, because of the particular manner in
which that Convention was negotiated. Dissatisfaction with the rules that
had been set out in four Conventions on the Law of the Sea concluded in
Geneva in  (which were seen as serving the interests of the former
colonial powers and of the developed States in general) led to much

6
See the  Treaty on the Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies. The treaty has 
parties. And see the  Antarctic Treaty, which has  parties. It might also be argued that the
UN Law of the Sea Convention has this effect with regard to the seabed beyond the limits of
national jurisdiction, although the better view is that this status arose as a matter of customary
international law independently of the Convention.
7
E.g., the  Treaty Concerning the Permanent Neutrality and Operation of the Panama
Canal.
 International Law
pressure for change, particularly from the newly independent States. The
proponents of change had an overwhelming numerical majority, but it was
appreciated that there was little point in using that voting power to force
through a text against the wishes of the more powerful developed States.
Accordingly, the third UN Conference on the Law of the Sea (UNCLOS
III) at which the  Convention was drafted adopted a ‘consensus’
procedure, under which the chairman of each negotiating session would
prepare a text which he thought represented the best chance of comman-
ding general assent. Changes to these negotiating texts were made only
when the chairman thought that they would substantially increase the
chances of general acceptance of the final text. It was relatively easy to find
consensus on the main lines of the legal regime, and it was apparent from
an early stage, in the mid s, what broad shape the final Convention
would take. For example, it was plain that it would recognize coastal State
rights over fish stocks in an Exclusive Economic Zone, within  miles of
their coasts—a radical change to the ‘’ law, which had limited exclu-
sive fishery rights to twelve miles. States began to assert such rights
unilaterally, establishing -mile fishing zones or claiming an exclusive
economic zone with rights over all marine resources, as the negotiating
texts envisaged. So many States adopted this course that there was a clear
‘general practice accepted as law’ supporting the -mile claims by the
latter half of the s, before the sequence of negotiating texts had gener-
ated the final Convention text in . Nonetheless, the fact that the State
practice accumulated around the UNCLOS III texts and was plainly
intended to reflect them meant that the provisions of the  United
Nations Convention on the Law of the Sea crystallized that development
in customary international law, and may be regarded as a clear articulation
of the legal rules implicit in that body of State practice.
The third possible relationship between a treaty and customary inter-
national law contemplated in the North Sea Continental Shelf cases was that
the treaty might pass into customary international law after its conclusion.
In principle this is unremarkable. Customary international law results
from the accumulation of State practice coupled with opinio juris focused
upon an explicit or implicit norm. It does not matter where that norm is
located. It might be articulated in something like the Truman Proclamation,
or be implicit in parallel laws adopted by several States, for example. And
there is no reason why that norm should not be set out in a treaty. If a treaty
provision is taken up in State practice, with the necessary opinio juris, it
may pass into customary international law.
The need for State practice is straightforward; but the need for opinio
juris is more problematic. The question one asks in addressing the need for
opinio juris is, does the State following this course of action consider that it
 How International Law is Made 
is the expression of a rule of customary international law? For States
Parties to the treaty, however, the obvious reason for a State to express a
norm in its practice is that it is acting in conformity with the treaty, rather
than in conformity with customary international law. As the Court noted
in the North Sea Continental Shelf cases, it will therefore be difficult to
prove the existence of the opinio juris necessary in order to translate the
rule of treaty law into a rule of customary international law. It will not,
however, be impossible to do so, as the Nicaragua case showed.
That case concerned Nicaragua’s complaint that the United States was
engaged in military and paramilitary activities against the Sandinista
Government in Nicaragua. The United States said that it was acting in
collective self-defence with El Salvador, which was itself the victim of
armed intervention by Nicaragua. All three States were parties to the UN
Charter (which is, of course, a treaty). But the United States’ declaration
accepting the jurisdiction of the International Court contained a reserva-
tion stipulating that disputes arising under a multilateral treaty are
excluded from the Court’s jurisdiction unless all treaty parties affected by
the decision are parties to the case: and El Salvador was not a party to the
case. The Court therefore could not rule on the United States’ compliance
with the UN Charter. If, however, the Charter rules in question—on
non-intervention and the use of force—had passed into customary
international law, the Court could apply the customary law rules. The
Court set about the task of determining if this was indeed the case. It said
in its Nicaragua (Merits) judgment that:
The Court does not consider that, for a rule to be established as customary, the cor-
responding practice must be in absolutely rigorous conformity with the rule. In
order to deduce the existence of customary rules, the Court deems it sufficient that
the conduct of States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indications of the recognition of a new rule.

In the event, the Court was satisfied with rather little in the way of State
practice (much of it in the form of declarations and General Assembly
resolutions). It dealt swiftly, and somewhat obliquely, with the question
analysed so thoroughly in the North Sea Continental Shelf cases, whether the
conformity of States with the putative rules was the result of the fact that
they were bound by the Charter to comply with them or the result of opinio
juris concerning customary international law. The Court found that the
adoption by States of various resolutions, and in particular the 
Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States (UN General Assembly reso-
lution  (XXV)—the bracketed Roman numerals indicate the year in
 International Law
which the resolution was adopted, measured from the date of the foundation
of the UN in ), evidenced the necessary opinio juris. Not surprisingly, it
held that there were rules of customary international law corresponding to
the Charter rules on the use of force and non-intervention.
The Nicaragua case shows that it is possible for treaty provisions to have
a parallel existence as rules of customary international law; and the prohib-
ition on the use of force in Article () of the Charter was a post-
development, so that the Charter cannot be regarded as having simply
codified or crystallized a pre-existent rule of customary law. But there are
not great numbers of treaties or treaty provisions that are likely to be so
readily accepted as having a parallel existence in customary law. The
Vienna Convention on the Law of Treaties is one example, most of whose
provisions are regarded as reflecting customary international law. The
 Law of the Sea Convention (or at least Parts I–X of that Convention)
is another. So, too, are a good number of the basic human rights provisions
in treaties. Many of these instruments were regarded as actual or prospect-
ive codifications of whole areas of international law. But there is certainly
no general presumption that even the most common provisions found in
treaties, such as the provisions on investor protection contained in more
than , treaties drafted in broadly similar terms, have passed into
customary international law. Treaties and customary law have a close
inter-relationship; but the fact remains that treaties, unless they are
attempting to codify international law, are generally concluded because
customary international law is regarded as insufficient for the needs of the
parties. They are specific bargains, binding on the parties only.

..  

It is relatively easy to locate treaty texts. Article  of the UN Charter
stipulates that no Member may rely on a treaty ‘before any organ of the
United Nations’ unless the treaty has been registered with the UN. The
vast majority are so registered and then published in the United Nations
Treaty Series, in hard copy and on-line. The League of Nations performed
a similar function with the League of Nations Treaty Series. Other inter-
national organizations publish treaties for which they are depositories. For
example, the IMO is the depository for many multilateral treaties in the
fields of shipping and marine pollution. In addition, many States publish
the bilateral and multilateral treaties to which they are parties, in national
series such as the United Kingdom Treaty Series.
Having considered customary international law and treaties, it remains
to say something about the other sources of international law.
 How International Law is Made 

.    

..    
The third of the sources of international law listed in Article  of the ICJ
Statute is ‘the general principles of law recognized by civilized nations’.
This source may appear to be inferior to treaties and customary inter-
national law: a stop-gap to which judges may revert if they fail to find a rule
of treaty or custom that determines an issue before them. There is some
truth in this view. It is easier, and more compelling, to determine cases by
holding States to explicit rules to which they have signed up in a treaty and
to rules of customary international law which bind all States. But general
principles have an important place in international law and should not be
underestimated.
In some respects they are uniquely useful. There are powerful legal
principles, such as the rules of natural justice (the rules that each side in
a dispute is entitled to be heard; that no-one may be a judge in his own
cause; and so on), and doctrines such as estoppel and the ‘clean hands’
principle (that someone who has breached his obligations under an
agreement may not ask a tribunal to enforce that agreement), which have
not been codified in any international treaty. These principles are com-
monly used in national courts; but they rarely arise in State practice
because diplomatic exchanges are not conducted like court pleadings.
One State may point out that another has previously taken a different
position on a certain matter, but it is unlikely that a diplomatic note would
say explicitly that the other State is ‘estopped’ from changing its position.
Estoppel is the language of the court-room lawyer, not of the diplomat.
Accordingly, it is difficult to find sufficient State practice on the question
of estoppel to form the basis of a rule of customary international law. Yet
all lawyers know that estoppel is a basic tool of court-room law. Article
()(c) lets such principles in to international law, as ‘general principles
of law recognized by civilised nations’. It enables international courts to
employ such rules.
There is a related point, which concerns the connections between inter-
national and national courts and tribunals. The lawyers who practise in
international tribunals almost invariably also practise in national tribunals.
Many of the judges on international tribunals come from the ranks of those
lawyers, and not infrequently from the ranks of national judges. Disputes
before international tribunals have often been (or subsequently go) before
national courts. National and international law are not separate systems,
isolated one from the other. They are deeply interconnected, and the
 International Law
techniques and principles and practices of national laws permeate inter-
national law. The reference to ‘general principles of law’ in the ICJ Statute
reflects the fact that although it routinely applies sources such as treaty and
customary international law which arise relatively rarely in municipal
courts, the International Court is still a member of the family of tribunals
which together maintain the Rule of Law in the settlement of disputes. It
may be International; but it is still a Court.
Not all municipal law principles and doctrines are suitable for transla-
tion onto the international plane. To take one obvious example, national
legal systems commonly apply the rule that the validity of statutes may not
be challenged by courts (except in circumstances where they can be
challenged on grounds that may be set out in the constitution). If that rule
were applied in international tribunals, it would in many cases be practic-
ally impossible for an international tribunal to find that a State had violated
its international obligations. It is only those general principles that are apt
for translation onto the international plane that may be so applied. It is, of
course, a matter of appreciation whether any given principle is ‘apt’ for
application in this way. What about the principles of legitimate expectation
and of proportionality? What about pre-contractual representations, or
the rules on self-defence? Arguments might be made either way. The right
to have recourse to general principles of law gives international tribunals
a powerful instrument for judicial creativity and innovation—though
tribunals have, as yet, used it sparingly.
..    
Legal obligations can arise from simple utterances. When people, asked
during a wedding ceremony if they take someone as their spouse, say
‘I do’ they do not simply make a statement of fact or intention. The utter-
ance of those words has a specific effect, changing the legal relationship
between the people concerned. By uttering those words they effect the
act of marriage. Those words are an example of a particular category of
speech acts, as they are known in linguistics. The speech acts in a
marriage ceremony are a bilateral matter. The marriage is constituted by
an exchange of vows, and the exchange is essential in order to make the
marriage: if the groom says ‘I do’, but the bride says ‘On reflection, I’d
rather not’, there is no marriage. There are, however, speech acts that are
unilateral in character but which nonetheless achieve legal effects. The
taking of an oath of allegiance, or an oath of office, or of the oath admin-
istered prior to the giving of evidence, are all instances of unilateral acts
that have legal effects, changing the legal position of the person making
the utterance.
 How International Law is Made 
International law has its own category of acts of this kind: unilateral acts
that produce legal effects. The best known examples are the statements made
by the President and the Foreign Minister of France in , in which they
stated that the atmospheric tests of nuclear weapons which France was then
conducting in the Pacific were the last round of such tests and that future
testing would be conducted underground (but still in the Pacific, rather than
France). Australia and New Zealand had instituted proceedings against
France in the International Court, seeking a declaration that the atmospheric
tests were unlawful. France chose not to appear before the Court; and it was
evident that France would not regard itself as compelled by any decision that
the Court might take to abandon any tests that it considered essential to its
security. The Court seized on the French statements, saying:
It is well recognised that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations. When
it is the intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to follow a course
of conduct consistent with the declaration.

The Court regarded the French statements as binding unilateral acts, with
the result that France had bound itself as a matter of international law to
cease atmospheric tests. The corollary of this conclusion was that France
had voluntarily assumed the main legal obligation that Australia and New
Zealand wished the Court to impose upon France, so the Court was able
to dismiss the applications against France as moot.
Few readers have been convinced by this analysis. Some have argued
that there was no established rule of international law that gave binding
legal effect to public statements of this kind. There were, it is true,
precedents that gave such effect to commitments made in the course of
negotiations with another State which acted in reliance upon the state-
ment; and it is a well-established legal principle that commitments made
to a court during proceedings are legally binding. Estoppel and preclusion
are also well-established legal doctrines. But none of these covered the
case of the French declarations, and it is hard to find any basis in State
practice or in the jurisprudence of international tribunals for the principle
that the Court asserted in the Nuclear Tests cases. But the most potent
objection is surely that there was no proof that France had intended the
statements to be binding: they looked like simple statements of policy. It is
hard to believe that France intended to bind itself legally by those state-
ments, convenient as that assumption was as a way for the Court to avoid
having to issue a judgment that would almost certainly have been ignored
 International Law
by France. Indeed, a few years later in the Frontier Dispute case between
Burkina Faso and Mali the question of unilateral acts came before the
International Court once more, and the Court took the opportunity to
redefine the requirements for giving them binding legal force, doing so in
a manner that comes close to confining the Nuclear Tests principle to the
peculiar circumstances of that case.
Nevertheless, undoubtedly there are instances of binding unilateral acts.
Declarations of acceptance of the jurisdiction of the ICJ; the making of
reservations and interpretative declarations in respect of treaties; and the
declaration by coastal States of maritime zones, such as territorial seas
and customs zones, in the waters adjacent to their land territory, are all
examples. The International Law Commission undertook a study of
unilateral acts and in  issued ‘guidelines’ relating to them, which reflect
the general approach of the International Court in the Nuclear Tests cases.
Yet there is a more general question which is being left largely unexplored:
whether it is enough to distinguish between ‘binding’ and ‘non-binding’
unilateral acts. That distinction is stark. It is, presumably, a consequence
of the Nuclear Tests approach that France, being bound by its unilateral
declarations, had no legal right to depart from them. There is no indication
that France could ever have escaped the binding force of those declarations,
although common sense says that there must be circumstances in which it
could do so. But it might be better to regard all unilateral statements, includ-
ing even ‘non-binding’ statements of policy as potentially having some legal
consequences, so that States would not in ordinary circumstances be
entirely free to reverse announced policies without notice. If a State did
make an unannounced reversal of policy, it might be liable to compensate
those who had reasonably acted in reliance upon the policies. This approach
would import into international law the doctrine of legitimate expectations,
which might be counted as a ‘general principle of law recognized by civi-
lized nations’. But this lies in the future. It is another possible growing
point; another possible way in which international law can continue to adapt
itself to changing circumstances and demands.
..     
 -
It is a trite proposition that the international legal system has no legisla-
ture; but there are many instruments adopted by international organiza-
tions that look suspiciously like legal texts. One, the Declaration on
Principles of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the Charter of the United
Nations, looks almost like a statement of basic constitutional rules and
 How International Law is Made 
principles. Indeed, in the next chapter I will discuss its content in much
those terms. But here I am referring to it not because of what it says but
because of where it came from. It is a text adopted by the UN General
Assembly as Resolution  (XXV) in . What legal force does that
give it, and other resolutions adopted by the General Assembly?
Some resolutions of international organizations are binding. Resolutions
on the admission of new Members, on the budget and other matters con-
cerned with the internal economy of the organization are clear examples.
But these are scarcely law-making resolutions. Some resolutions are,
however, expressed in the language of legal pronouncements. To take two
examples, General Assembly resolution  (XV), the Declaration on
the Granting of Independence to Colonial Territories and Peoples set
out in some detail the right of self-determination of ‘all peoples’ and the
consequences of that right for other States, and General Assembly resolu-
tion  (XXIV) declared a moratorium on the exploitation of the
resources of the deep sea bed beyond the limits of national jurisdiction
(i.e., beyond the limits of national continental shelves). Are those reso-
lutions legally binding?
It is tempting to say simply, no. Nothing in the UN Charter stipulates that
such resolutions have the force of law, or even that they are binding upon the
Members of the UN. Indeed, because the Charter does say (in Article )
that Members ‘agree to accept and carry out the decisions of the Security
Council in accordance with the present Charter’ one might infer from the
absence of a similar provision concerning General Assembly resolutions that
they were intended not to be binding. And, furthermore, an examination of
the debates and drafts leading to the conclusion of the UN Charter would
lead to much the same conclusion. But the matter is not quite so simple.
Resolution  addresses the question of self-determination. Article
() of the UN Charter stipulates that it is one of the Purposes of the
United Nations to ‘develop friendly relations among nations based on
respect for the principles of equal rights and self-determination of
peoples’. Article () binds UN Member States as a matter of treaty law.
But what does Article () mean? What does respect for the principle of
self-determination of peoples entail in practice? Resolution  was
adopted in , when many present Members of the UN were still under
colonial rule, by  votes to , with nine abstentions—Australia, Belgium,
Dominican Republic, France, Portugal, South Africa, Spain, the UK, and
the USA. True, the main (non-communist) colonial powers abstained: but
no State actually voted against resolution . We might therefore
say that the resolution represents a consensus as to what the concept of
self-determination means under the UN Charter.
 International Law
To put it in treaty terms, we might regard the resolution as being similar
to an agreement between the parties to a treaty regarding the interpreta-
tion of the treaty, which is one of the materials that must be taken into
account in the interpretation of the treaty, according to Article () of the
Vienna Convention on the Law of Treaties. The similarity is inexact,
because we cannot tell from the face of the resolution that it was intended
by those who voted for it to be an interpretation of the legal consequences
of Article () of the Charter, even less that it was intended to be a binding
interpretation. States may have voted for it for purely political reasons—
as an expression of policy, not of law. The records of the General Assembly
debate may give some insight into the motivation behind the resolution;
but they will rarely be conclusive. Moreover, even if the resolution was
intended as an authoritative interpretation of Article (), only States that
had voted for the resolution would clearly be bound by it. Nonetheless,
unless States had plainly opposed the interpretation that it set out, it is
likely that it would become an influential guide to the interpretation of the
Charter provisions to which it relates.
There are other ways of looking at General Assembly resolutions.
Recall the nature of customary international law. The traditional formula-
tion says that customary international law consists of State practice
coupled with opinio juris, and I referred earlier to the problem of prohibi-
tive rules where the ‘practice’ element consists of not doing something.
Take as an example the rule of customary international law that stipulates
that no State may appropriate any area of the deep sea bed beyond the
limits of national jurisdiction. That is the ‘rule’ that was articulated in
General Assembly resolution . No State has ever attempted to make
such an appropriation: in other words, all States have always refrained
from appropriating the deep sea bed. But that is not enough to make a rule
of law. We plainly cannot assume that for every act that no State has (yet)
undertaken there is a rule of customary international law forbidding
such acts. It is the opinio juris that will make the position clear. States are
not given to making abstract statements of law à propos of nothing.
Declarations of opinio juris are responses to particular occasions; and one
such occasion may be the adoption of a UN General Assembly resolution.
Thus opinio juris may accumulate around UN General Assembly reso-
lutions as it may gather around any other articulation of a putative rule of
customary international law, and may transform rules set out in the
resolution into rules of law. The opinio juris may be discerned from the
debates in the General Assembly or from external sources, such as
statements made outside the UN by governments in which they affirm
that the resolution in question embodies a statement of the law. If the rule
 How International Law is Made 
were ‘generally’ accepted, a rule of customary international law would
emerge. I have given the example of a prohibitive rule of customary
international law in order to make the point clearer. Resolutions of inter-
national organizations are one of the most obvious ways by which such
rules may emerge. But there is no reason why the same analysis should not
apply to any other kind of rule.
UN General Assembly resolutions may thus be the seeds of rules of
customary international law, and acquire binding legal force. The normal
rules applicable to customary international law would apply. For instance,
States may persistently object to the emergent rule and therefore not be
bound by it. Equally, in the early stages of the rule two or more States that
have accepted it as law might be bound by it as between themselves. The
fact that the text in question appears in a General Assembly resolution is,
in truth, irrelevant. The text might as well have appeared in a unilateral
declaration, such as the Truman Proclamation, or in a draft General
Assembly resolution, or in some non-governmental statement, for example
articles adopted by the International Law Commission (whose Articles on
State Responsibility have been enormously influential and widely cited by
tribunals) or by some other body such as the International Law
Association (which adopted the influential Helsinki Rules on the Uses of
the Waters of International Rivers in ).
Wherever the text is set out the legally significant factor is the assertion
by a State that it regards the text as the statement of a binding rule of law.
Assertions of that kind are more to be expected in some circumstances
than in others. Circumstances in which the General Assembly has before
it a resolution that ‘declares’ (or even better, ‘solemnly declares’) certain
principles of an apparently legal nature are natural situations in which to
look for, and often to find, evidence that the resolution was intended by
some or all of the States to express rules of law. For instance, the
International Court of Justice in the Nicaragua case was faced with the
need to decide whether there was a rule of customary international law
prohibiting the threat or use of force in international relations. It looked
for opinio juris on the matter and held that:
This opinio juris may, though with all due caution, be deduced from, inter alia
the attitude of the Parties and the attitude of States towards certain decided
General Assembly resolutions, and particularly resolution  (XXV) entitled
‘Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations.’ The effect of consent to the text of such resolutions cannot be under-
stood as merely that of a ‘reiteration or elucidation’ of the treaty commitment
undertaken in the Charter.
 International Law
The Court did not explain why it thought that consent to (i.e., voting for)
the text of the resolution should not be viewed as ‘reiteration or elucida-
tion’ of the Charter obligation, but it probably understood this to flow
from the unequivocal statement in the Declaration that ‘The principles of
the Charter which are embodied in this Declaration constitute basic
principles of international law.’
There is another possibility. Votes for UN General Assembly reso-
lutions might be regarded as instances of unilateral declarations. If a State
votes for the resolution and the State’s representative declares during the
debate that he or she is voting for the resolution on behalf of the State
because the resolution affirms a rule of customary international law, it is at
least arguable that the vote might be regarded as a commitment by that
State to that rule of law at least if it can be shown that the State making the
declaration intends to become bound according to its terms. In this case,
unlike the analysis that treats resolutions as the seeds of new rules of
customary law, it is only those States that made the statement that would
become bound by the terms of the resolution: no wider normative effect
would flow from the ‘unilateral declaration’.
The results of these analyses may be unexpected. When UN General
Assembly resolution  was adopted in  the intention on the part of
the States that promoted the resolution—mainly members of the ‘Group
of ’ developing States—was to create a prohibition that would prevent
those few developed States which were then the only States technologic-
ally capable of exploiting the deep sea bed resources from engaging in such
exploitation prior to the international regime which the Group of  was
trying to negotiate (and which eventually was established in Part XI of the
 UN Convention on the Law of the Sea). But resolution  was not
inherently binding on all UN Member States under the Charter; it was
not an authoritative exposition of any provision of the Charter; and on the
‘customary international law’ and ‘unilateral declaration’ analyses, the
resolution could have had the effect of binding those States that voted
for it (mainly Group of  States) but could not have bound those States
that opposed it, as did practically all of the developed States at which the
prohibition was aimed.
The explanations that I have given so far of the binding force of reso-
lutions of the UN General Assembly all fit in to the classical framework of
the sources of international law. The binding force is attached to analysis
based on treaty law or customary international law and ‘unilateral acts’. But
there are other ways in which resolutions of international organizations can
have normative force.
 How International Law is Made 
One such way is through the development of technical standards.
Suppose that one State claims that another is interfering with the rights of
passage of foreign ships by constructing port facilities protruding into the
sea in a narrow international strait. The State constructing the works
replies that it has left a fairway which is perfectly adequate to allow the
passage of foreign ships. The first State responds that the fairway is too
narrow. How is one to judge who is right? The International Court and
other international tribunals before which the question may arise have
very able lawyers sitting on them: but few, if any, of those judges could
make an expert judgment on the minimum width of fairway necessary to
accommodate the range of commercial and military vessels that may wish
to exercise their right of passage. How, then, is the question to be settled?
One approach is to refer to technical standards set by competent inter-
national organizations. For instance, the IMO adopts many standards
relevant to shipping matters, at meetings composed of technically
knowledgeable representatives from the governments of its Member
States. It is natural for counsel before international tribunals to refer to
such standards in support of their case, and equally natural for tribunals to
refer to them in support of their judgments. This is indeed what happens.
Standards set by bodies such as the IMO, the World Health Organization
(WHO), the International Atomic Energy Agency (IAEA), the Food and
Agriculture Organization (FAO), and the Codex Alimentarius are
increasingly relied upon in order to give precise substance to international
rules that are framed in general terms.
The discussion so far has pointed out various ways in which resolutions
of international organizations can have a law-making effect. It is import-
ant to see this in perspective, however. Most resolutions do not have law-
making effect. Most resolutions do not bind States or set out technical
standards. Most resolutions are statements of policy or recommendations
to governments and others. The UN routinely adopts resolutions pro-
moting various interests—encouraging States to assist poorer States with
technical and financial assistance, urging the advancement of colonial
territories to self-determination, deploring discrimination, and so on. The
majority of these are plain statements of policy; and while the resolutions
of technical international organizations include a higher proportion of
resolutions dealing with technical standards, most of them are also recom-
mendatory or policy statements. But even these resolutions are not wholly
without normative force.
Such resolutions are part of the body of ‘soft law’, that is, norms that are
not themselves legally binding but form part of the broader normative
 International Law
context within which expectations of what is reasonable or proper State
behaviour are formed. Some people also put into the category of soft law
norms that are legally binding but which are expressed in vague terms,
such as the duty not to ‘hamper’ the passage of ships through international
straits, which stand in need of further particularization before they can be
applied to decide concrete cases. I think it is unhelpful to regard such rules
as ‘soft law’. They are binding in their own terms; and even rules that
appeared clear at the time that they were drafted may come over time to
reveal a range of possible interpretations and become ‘vague’. Better to
confine the term ‘soft law’ to norms that are not binding but which colour
the application of norms that are legally binding.
A good example is the ‘precautionary principle’. Principle  of the
 Rio Declaration on Environment and Development stipulates that:
In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.

The Rio Declaration is not itself a legally-binding instrument. The terms in

which Principle  is drafted are so vague as to make it difficult to regard it
as a rule of any kind. How widely is ‘widely applied’? What are the relevant
capabilities of States, and how is the application of the precautionary
principle to be calibrated in relation to them? In what contexts should the
precautionary principle be applied? How can one know if a measure is
‘cost-effective’ if one lacks ‘full scientific certainty’ concerning the proposed
measures, their effects, and the risks against which they are directed? But for
all this uncertainty, the precautionary principle expresses a particular
approach to questions clearly enough. And it is expressed in essentially
normative terms: do not use scientific uncertainty as a reason for inaction,
or something like that. So, while States and judges on international tribunals
have not, as yet, appeared keen to treat it as a binding, legal obligation, they
have referred to it as part of their reasoning in order to justify decisions that
are aligned with the precautionary principle. (A good example can be found
in the Southern Bluefin Tuna case in the ITLOS, in the Separate Opinion of
Judge Laing.) The deployment of texts to bolster support for a conclusion
that ultimately rests on other, binding rules is a classic use of ‘soft law’.
There is a growing use of ‘soft law’ instruments: non-binding declar-
ations, resolutions, recommendations, and the like. The reason is not hard
to see. States are naturally reluctant to sign up to binding legal instruments,
particularly in respect of such vaguely formulated provisions as Principle
 of the Rio Declaration. But they may well see the desirability of a
 How International Law is Made 
particular course of action and be willing to accept it formally, as a guide-
line or aim which they hope and intend to implement progressively as and
when they are able to do so. A good example is the UN Food and Agriculture
Organization’s Code of Conduct on Responsible Fishing, which sets out a
wide range of measures that States might adopt in order to reduce unlaw-
ful fishing and over-exploitation of fish stocks. Knowing that other States
are working towards the imposition of similar measures on their own fish-
erfolk may be critical to the acceptability of the measures, and formal
adoption of the soft law instrument may therefore be a very useful step. It
is a mistake to think that simply because an instrument is not legally bind-
ing it has no value, and no effect upon State behaviour.
..    -
  
Law, as the Greeks and Romans knew well, is essentially a matter of
rhetoric. It is a style of argument, where speech is deployed in order to
persuade people to do or not to do something, in accordance with the
speaker’s wishes. No-one who has seen a very good (or a very bad) advo-
cate in action could believe that courts simply have lines of legal authority
drawn to their attention and then decide the case accordingly, or that a
reference in a diplomatic note to some provision of a treaty or of custom-
ary international law will compel another State to concede that the law is
against it. Disputes usually arise because there are at least two positions on
the matter that can be argued rationally and reasonably. Almost invariably,
cases are pursued in courts precisely because both sides think that they
have enough chance of success to make litigation a rational option.
Similarly, specifically legal argument in diplomatic exchanges generally
reflects a belief that each side has an arguable legal case. In such situations,
how is a tribunal to decide?
I hope that it comes as no surprise to learn that common sense, the
intelligent analysis of the policy implications of the decision, and an elem-
ental sense of justice are paramount considerations in choosing between
the solutions that a tribunal might rationally adopt. These factors sit
within a framework motivated by the fundamental desire for coherence—
the desire to ensure that legal rules and decisions fit together, supporting
and not conflicting with one another. That much may be obvious; but it
may be less obvious that one consequence of this inevitable position is that
extra-legal arguments and principles are inextricably intertwined with
specifically legal norms in the application of the law.
These extra-legal or non-legal principles are often overlooked. Take, for
example, the case of a claim by an investor that its investment has been
 International Law
treated in breach of a duty of ‘fair and equitable treatment’ set out in a
bilateral investment treaty. The investor may complain that officials of the
host State said that it could expect to be granted a licence to operate a
waste plant in a particular location; or the investor might enter into a
concession agreement with the host State on the assumption that the
prevailing tax rules would continue to be applied. But what if local author-
ities in the region decide to refuse a licence to operate the waste plant, or
the tax authorities adopt new tax laws which affect the profitability of the
concession? Is that unfair or inequitable treatment? Clearly, that question
cannot be answered by asking if the action of the State is lawful. One must
ask if it is fair, and if it is equitable.
In asking those questions one is, in effect, referred to a system of
normativity that lies outside the law. The answers will differ according to the
conception of what is fair and equitable. If one measures the standard
against the practice of a despotic State in which decisions announced by
agents of the ruler will always be implemented, regardless of what the law
may say, one may come to a result different from that which uses as its meas-
ure practice in a State where the Rule of Law is applied at all levels and a rule
of law stipulates that public authorities can never be estopped in the context
of decisions where they have a statutory discretion which they must
exercise. Systems that have developed doctrines of legitimate expectations
or of proportionality may suggest yet other results. In such cases there is a
combination of elemental notions of fairness—‘elemental’ in the sense that
the notion is not defined in terms of legal rules and doctrines, but rather in
terms of the near-intuitive sense of fairness—with a broad framework of
principles of fair behaviour that is posited, perhaps unconsciously, as the
framework within which judgements on fairness are made.
This approach to fairness draws heavily upon ideas of fairness that are
‘out there’, circulating in those parts of international society that lawyers
inhabit. And those ideas change over time. British lawyers no doubt took a
slightly different view of fairness of the expropriation of private property
after the British Government nationalized the coal industry and the
health service. The fairness and reasonableness of a State refusing to
prosecute, or even investigate, alleged corruption is (sadly) affected by the
knowledge that influential States choose to abandon such investigations if
they carry the risk of souring diplomatic relations with another State. The
key point here is that these ideas of fairness and equity are not the product
of law-creating processes. ‘Fairness’ and ‘equity’ are not concepts whose
content is prescribed by law. They are extra-legal concepts to which the
law refers at certain stages in legal reasoning. The corollary is that the
content of ‘fairness’ and ‘equity’ is shaped by a much broader range of
factors and processes than bear upon the creation of rules of law.
 How International Law is Made 
A good example is the concept of sustainable development. This is not
a legal rule. It is a concept whose essence is the idea that it is good to exploit
resources and carry on activities in such a manner that they could be
carried on indefinitely. Fisheries should not be over-fished, but fished at
sustainable catch levels; industries should not throw out pollution in
unlimited quantities, but should discharge waste only on a scale and in a
manner in which it can safely be absorbed. It is the idea that any given
generation is in some sense (and not necessarily a very coherent sense) a
trustee for future generations, obliged to hand on the world in as good a
shape as it found it. This concept was first developed outside the legal
context, as a political axiom in seminal documents such as the Brundtland
Report. The concept continues to be refined by political and moral philo-
sophers, environmentalists, economists, and others. Lawyers continue to
refer to it: prominent examples are Judge Weeramantry’s Separate
Opinion in the Gabcikovo case in the International Court, and the decision
of the Supreme Court of the Philippines in the Minors Oposa case. But
what they are referring to is not a legal norm but an interstitial norm—a
non-legal norm, generated and developed by non-legal sources and
processes, with a life of its own outside the law—which can nonetheless
be used to assist legal argument. Thus, Judge Weeramantry used the
(non-legal) concept of sustainable development to reconcile the legal
norm that permits States to develop their economies and the potentially
conflicting legal norm that forbids the causing of environmental harm.
The legal norms coexist: and the manner of their co-existence is explained
by reference to the non-legal concept of sustainable development, which
reconciles the two legal norms.
Thus does the law sit within society. It has its own rules and procedures.
But it can never be divorced from the general framework of normative
argument in the society within which it operates. And this is as true of
international law as it is of national law.

8
World Commission on Environment and Development, Our Common Future (The
Brundtland Report) (Oxford: Oxford University Press, ).
 

The Principles of the International

Legal System

International law has something close to a constitutional document,

or perhaps more exactly a manifesto: a statement of the fundamental
principles upon which the international legal order is based. It is the
Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation Among States in Accordance with the Charter
of the United Nations, adopted by the UN General Assembly in  as
resolution  (XXV). It was negotiated between  and , with all
the attention to detail that would be expected in the negotiation of a major
international convention. It was, moreover, adopted at the height of the
Cold War, in the decade that saw the building of the Berlin Wall, the
Cuban Missile crisis, the Vietnam War, and the break-up of the remains of
the old colonial empires. And yet resolution  was adopted without a
vote, thus signalling that it represented a consensus. It therefore has a
peculiar importance, as the irreducible core of principles upon which
States that were diagonally opposed, and States that preserved their Non-
Aligned status, could agree as the foundation of the international order.
The resolution sets out seven basic principles:
(a) The principle that States shall refrain in their international relations
from the threat or use of force against the territorial integrity or polit-
ical independence of any State, or in any other manner inconsistent
with the purposes of the United Nations,
(b) The principle that States shall settle their international disputes by
peaceful means in such a manner that international peace and secur-
ity and justice are not endangered,
(c) The duty not to intervene in matters within the domestic jurisdiction
of any State, in accordance with the Charter,
(d) The duty of States to co-operate with one another in accordance with
the Charter,
(e) The principle of equal rights and self-determination of peoples,
 The Principles of the International Legal System 
(f ) The principle of sovereign equality of States,
(g) The principle that States shall fulfil in good faith the obligations
assumed by them in accordance with the Charter, so as to secure their
more effective application within the international community.
These are principles and not rules. In the influential distinction drawn
by Ronald Dworkin rules have an all-or-nothing character but principles
do not. Rules are applied by deciding if a case falls within the rule; and if
it does, the rule stipulates what decision must be reached. For instance, if
x is a member of the family of a diplomatic agent, x enjoys the privileges
and immunities specified in Articles  to  of the  Vienna
Convention on Diplomatic Relations. There is no room for manoeuvre, no
possibility of arguing that some of those privileges and immunities do not
apply. Principles, on the other hand, are not all-or-nothing norms. They
are rather reasons for reaching a conclusion, factors weighing in favour of
a particular decision. A principle may, however, be displaced or super-
seded by another principle. For instance, while the principle that States
should not use force against other States is firmly established in inter-
national law, that principle yields to the right of a State to use force to
defend itself if it is attacked. The distinction between rules and principles,
though controversial, is useful here because it indicates that the principles
with which we are concerned may be invoked in any context as reasons for
a particular decision. They have a pervasive importance that entitles them
to be regarded as fundamental principles of the international legal system;
and they underlie all of the other principles and rules discussed later in
this book. Some of the principles in resolution , such as the prohib-
ition on the threat or use of force, have been developed in some detail and
will be discussed in later chapters. But it is worthwhile examining the
principles themselves, because of their fundamental significance.

.    

    
First place is given in resolution  to the principle that States shall
refrain in their international relations from the threat or use of force. The
scope of this principle is wider than may at first appear. As subsequent
paragraphs of the resolution make clear, it prohibits, for example, not only

1
Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard University Press,
).
 International Law
armed aggression against other States, but also the use of force to violate
boundaries and armistice lines, the use of force in reprisals, and the organ-
ization or encouragement of irregular forces for incursion into another
State. The latter aspect is reinforced by the
duty to refrain from organizing, instigating, assisting or participating in acts of
civil strife or terrorist acts in another State or acquiescing in organized activities
within its territory directed towards the commission of such acts, when the acts
referred to . . . involve a threat or use of force.

The prohibition serves two functions. One is to establish the basic rule
that international disputes should not be settled by the use of armed force.
That principle is taken for granted now; but international society has been
organized on this basis for less than a century. The move towards this posi-
tion began at the first Hague Peace Conference in  when the major
powers agreed upon peaceful procedures for the settlement of inter-
national disputes ‘with a view to obviating, as far as possible, recourse to
force in the relations between States’ as it was put in the  Convention
for the Pacific Settlement of International Disputes. While that
Convention did not forbid, or even limit, recourse to war it was intended
to promote peaceful settlement as the preferable alternative. Though
there were earlier agreements limiting the manner in which war might be
conducted, the first limitation upon the actual right to go to war did not
appear until the adoption of the Covenant of the League of Nations, the
predecessor of the United Nations, in . As I explain further in
Chapter , the Covenant merely imposed a cooling-off period before
States could resort to force; but in  the General Treaty for the
Renunciation of War (also known as the Briand-Kellogg Pact or the Pact
of Paris) went a stage further. Originating in a proposal by the French
Foreign Minister and Nobel Peace Prize Winner, Aristide Briand to the
United States’ Secretary of State, Frank Kellogg, that the two States
should lead by example and make a formal renunciation of war, the Pact
was opened up for adherence by all States; and  of them did adhere. The
States Parties solemnly declared in the Pact:
in the names of their respective peoples that they condemn recourse to war for the
solution of international controversies, and renounce it as an instrument of
national policy in their relations with one another.

‘War’ turned out to be an elusive concept. There was some argument as

to whether the Pact prohibited uses of force falling short of war; and the
Pact was not a great success. It, and the League, appeared powerless in
the face of the international violence of the s. It was this background
 The Principles of the International Legal System 
of limited and unsuccessful attempts to abandon and outlaw the use of
force as an instrument of foreign policy that lay behind the absolute
prohibition of the threat or use of force in international relations, expressed
in the Article () of the UN Charter and elaborated at the beginning of
resolution .
That first function of the prohibition is addressed to the question, how
should States go about the protection and advancement of their national
interests? It is, one might say, the equivalent of the ‘play nicely’ edict
issued to children in a playground.
The second function is much more specific, the equivalent of the firm
word in the ear of the playground bully. It establishes a duty on each State
not to threaten or use force against the territorial integrity or political
independence of another State; and a correlative right for each State not to
have force threatened or used against it. The second function is a matter of
precise obligations owed by each individual State to each other individual
State—one of the obligations that Iraq violated when it invaded Kuwait in
. Whereas the first function focuses upon the whole of international
society and on the system of international law, the focus of concern here is
on the violator and the victim. Moreover, the breadth of the duty and its
extension to the prohibition of the fomenting of terrorist acts in other
States is designed to underpin the integrity and inviolability of each State.
These two functions are not formally recognized as distinct aspects of
the principle, which refers simply to the principle of the non-use of force
in various contexts. But the conflation of the two functions can lead to
confusion. It is sometimes said of particular uses of force that they are not
aimed at ‘the territorial integrity or political independence’ of the State
against which force is used, but are intended only to compel that State to
comply with its international obligations. The Israeli raid on Entebbe air-
port in , in which Israeli passengers were rescued from a hijacked jet,
is one example. Such claims (whether or not they are legally valid) may
address the rights and interests of the target State; but they do not address
the broader community interest in the maintenance of the principle of the
non-use of force in international relations. The central issue in practice is
how and by whom a decision may be made that particular use of force is
justified, given the individual rights, duties, and interests of the States
using force and of the States against which force is used. How, in other
words, can the international community release States from the obligation
not to use force? There is a clear answer to this, which is that under the UN
Charter force may be used only in self-defence or with the authorization
of the Security Council. The issue, explored further in Chapter , is
whether that clear answer is satisfactory.
 International Law

.      


The second of the principles set out in resolution  is ‘the principle that
States shall settle their international disputes by peaceful means in such a
manner that international peace and security and justice are not endan-
gered’. At its heart this principle is essentially a corollary of the principle of
the non-use of force; but it extends further. States are not obliged merely
to refrain from using force to settle disputes: they are under a positive
obligation to seek to settle disputes by peaceful means of their choice. This
positive duty reflects the interest that all States have in the resolution of
disputes that may run out of control and threaten international peace and
security if they are not addressed and resolved timeously.

.    -

The third principle is curiously entitled ‘[t]he principle concerning the duty
not to intervene in matters within the domestic jurisdiction of any State, in
accordance with the Charter’. This principle ‘concerns’ the duty, rather than
simply stating what the duty is. It is one of the most potent and elusive of all
international principles, whose importance warrants its quotation in full:
No State or group of States has the right to intervene, directly or indirectly, for any
reason whatever, in the internal or external affairs of any other State. Consequently,
armed intervention and all other forms of interference or attempted threats against
the personality of the State or against its political, economic and cultural elements,
are in violation of international law.
No State may use or encourage the use of economic, political or any other type
of measures to coerce another State in order to obtain from it the subordination of
the exercise of its sovereign rights and to secure from it advantages of any kind.
Also, no State shall organize, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime
of another State, or interfere in civil strife in another State.
The use of force to deprive peoples of their national identity constitutes a
violation of their inalienable rights and of the principle of non-intervention.
Every State has an inalienable right to choose its political, economic, social and
cultural systems, without interference in any form by another State.
Nothing in the foregoing paragraphs shall be construed as affecting the rele-
vant provisions of the Charter relating to the maintenance of international peace
and security.
This principle, which had been solemnly declared in UN General
Assembly resolution  (XX) (the Declaration on the Inadmissibility of
 The Principles of the International Legal System 
Intervention in the Domestic Affairs of States and the Protection of Their
Independence and Sovereignty), again reinforces the principle of the
non-use of force, in its second role as the guarantee of the integrity and
inviolability of each State. It does so not by proscribing one particular
form of pressure—the threat or use of force—but by forbidding all action
that is intended ‘to coerce another State in order to obtain from it the sub-
ordination of the exercise of its sovereign rights and to secure from it
advantages of any kind’. Even the encouragement of such action is forbid-
den. In this way the principle affirms the central right of each State to
independence and to self-determination: that is, the right freely to choose
its political, economic, social, and cultural system.
To people accustomed to privacy and a right to individuality, the right
to be secure against intervention may appear to be an obvious element of
the international order. No matter what we may be thinking to ourselves,
we do not go up to strangers and tell them that we think that the design of
their coat is ugly and offensive; even less would we think of using force to
make them change their attire. We would not ordinarily tell a stranger that
we thought their choice of partner, or their way of bringing up their chil-
dren, was dangerously misguided. Why should we feel any more entitled
to intervene in the domestic affairs of foreign States?
This individualistic view carries over into the international field. The
influential liberation theology of the s emphasized that while the
problems of oppressed peoples around the world might be caused by a small
number of States, industries, or other groups, liberation from oppression
must be fought for and won by the oppressed themselves: liberation cannot
be secured by foreign aid or foreign intervention. Something of this view
survived in the reaction against the  invasion of Iraq. Some accepted
the argument that it was desirable that the Saddam régime be overthrown,
but thought that this was a matter that should come from within Iraq, and
neither imposed nor materially assisted by foreign States.
This individualistic view is, however, neither historically constant nor
necessarily transposable into the normative structure of international
relations. The focus on individual autonomy, rather than on a person’s
role and position in society, appears to be a characteristic that has grown
within the past half-millennium. The priority given to the idea of individual

2
See, e.g., Gustavo Gutiérrez, We Drink From Our Own Wells (Maryknoll, NY: Orbis
Books, ). Gutiérrez wrote a study of Bartolomé de las Casas, the sixteenth century theolo-
gian whose writings touched on issues of international law and who engaged in the great
Valladolid Debates of – with Juan Ginés de Sepúlveda, concerning the rights of the
indigenous peoples of ‘Latin’ America: see Las Casas: In Search of the Poor of Jesus Christ
(Maryknoll, NY: Orbis Books, ).
 International Law
choice, and of the parallel right of each State to choose its own structure
and destiny (which is often said to lie at the heart of the classical
‘Westphalian’ conception of Statehood) were corollaries of this move-
ment. But while the idea of individual autonomy gained hold, the idea of
national autonomy remained a relatively subtle and attenuated concept.
United States’ doctrine illustrates this well. The Monroe Doctrine,
enunciated by President James Monroe in his  State of the Union
Address, is often cited as an affirmation of the principle of non-intervention.
In as much as it asserted that the European powers should not meddle in
the affairs of American States—and notably the recently independent
United States and the newly independent South American Republics—
that is correct. But the Doctrine also asserted that any such meddling
with States in the United States’ ‘hemisphere’ (the Americas) might be
regarded as a threat against the United States, against which the United
States might react. This is evident in the text of the Doctrine:
In the wars of the European powers in matters relating to themselves we have
never taken any part, nor does it comport with our policy so to do.
It is only when our rights are invaded or seriously menaced that we resent
injuries or make preparation for our defense. With the movements in this hemi-
sphere we are of necessity more immediately connected, and by causes which
must be obvious to all enlightened and impartial observers.
The political system of the allied powers is essentially different in this respect
from that of America. This difference proceeds from that which exists in their
respective Governments . . .
We owe it, therefore, to candor and to the amicable relations existing between
the United States and those powers to declare that we should consider any attempt
on their part to extend their system to any portion of this hemisphere as danger-
ous to our peace and safety. With the existing colonies or dependencies of any
European power we have not interfered and shall not interfere, but with the
Governments who have declared their independence and maintained it, and
whose independence we have, on great consideration and on just principles,
acknowledged, we could not view any interposition for the purpose of oppressing
them, or controlling in any other manner their destiny, by any European power in
any other light than as the manifestation of an unfriendly disposition toward the
United States.
The threat of a United States’ reaction was spelled out in the ‘Roosevelt
Corollary’, announced in President Theodore Roosevelt’s remarkable
 Address to the Congress, which set out a vision of the role and
responsibilities of the United States that anticipated attitudes which were
asserted a century later. Roosevelt announced that the United States was
ready ‘to take action which in a more advanced stage of international rela-
tions would come under the head of the exercise of the international
 The Principles of the International Legal System 
police’, noting that ‘a great free people owes it to itself and to all mankind
not to sink into helplessness before the powers of evil’. He then continued
to expound his reading and development of the Monroe Doctrine:
Our interests and those of our southern neighbors are in reality identical. They
have great natural riches, and if within their borders the reign of law and justice
obtains, prosperity is sure to come to them. While they thus obey the primary laws
of civilized society they may rest assured that they will be treated by us in a spirit
of cordial and helpful sympathy. We would interfere with them only in the last
resort, and then only if it became evident that their inability or unwillingness to do
justice at home and abroad had violated the rights of the United States or had
invited foreign aggression to the detriment of the entire body of American
nations. It is a mere truism to say that every nation, whether in America or
anywhere else, which desires to maintain its freedom, its independence, must
ultimately realize that the right of such independence can not be separated from
the responsibility of making good use of it.
The United States’ State Department has observed that the Roosevelt
corollary ‘inverted the original meaning of the [Monroe] doctrine and
came to justify unilateral U.S. broadened in Latin America’. But in truth
Roosevelt simply spelled out what was truly a corollary of the original
doctrine. All States are to be free from foreign intervention: the issue is,
who will intervene to prevent such intervention. Talleyrand understood
the point when he wrote of the concept of non-intervention, ‘c’est un mot
métaphysique, et politique, qui signifie à peu près le même chose qu’in-
tervention’.
Non-intervention has thus long combined a basic principle that States
should not meddle in one another’s internal affairs with an ill-defined
body of exceptions allowing intervention in circumstances where some
essential interest of the intervening State is imperilled. The question is,
what circumstances warrant intervention? There is a pragmatic answer,
and a legal answer to that question. Some sense of the practical answer can
be gained by considering the occasions on which intervention has taken
place. Many instances from the years prior to the drafting of the
Declaration of Principles spring to mind: among them are the United
Kingdom–United States intervention in Iran in  to assist in the over-
throw of the Mussadeq regime; the Soviet interventions in Hungary in
 and Czechoslovakia in ; the intervention by United States and
Belgian forces in Stanleyville in the Congo in ; the United States’
interventions in Cuba in the Bay of Pigs , and the Cuban Missile
Crisis in ; India’s intervention in the civil war in East Pakistan in

3
<http://www.state.gov/r/pa/ho/time/jd/.htm>.
 International Law
, from which Bangladesh emerged as an independent State; the
United States’ intervention in Chile to assist in the overthrow of President
Allende’s Government in ; Israel’s intervention at Entebbe airport,
Uganda in ; Tanzania’s intervention in Uganda in  to assist in the
overthrow of Idi Admin; the United States’ interventions in Grenada in
, and in Panama ; the NATO intervention in Kosovo in ; and
the United States–United Kingdom intervention in Iraq in . Readers
with some sense of history will immediately appreciate that the list
includes a range of episodes which differ widely in the context in which
the intervention took place and the justifications that were offered for the
intervention.
The interventions in Hungary and Czechoslovakia are generally
regarded as attempts to prop up a particular brand of communism in
Soviet satellite States. The interventions in the Congo in  and in
Uganda in  were operations to rescue persons held hostage. The
interventions in Bangladesh, Uganda, and Kosovo are often seen as
instances of humanitarian intervention, where action was justified despite
the non-intervention principle by the need to avert grave, large-scale suf-
fering. The Iranian and Chilean interventions are often seen as naked
attempts to preserve western economic interests. The Cuban interven-
tions, and perhaps Chile and Panama also, appear to have been exercises in
the maintenance of United States’ hemispheric interests. And in the
ghastly confusion of the  invasion of Iraq, ‘regime change’ loomed
large as a supposed justification—though that is less a justification than a
description of the action taken.
Among those different circumstances some appear to have gained a
measure of international acceptability. Intervention to rescue nationals, as
in Entebbe, is one example; intervention to prevent a humanitarian catas-
trophe, as in Kosovo, is another. By no means all States have accepted the
legality even of interventions in those narrow circumstances. Some States
remain deeply concerned by any weakening of the non-intervention prin-
ciple, fearing that it may lead to widespread interventions by powerful
States for their own interests on one pretext or another. Even States such
as the United States, which have a not inconsiderable record of interven-
tion in third States, complain of interventions in the Middle East by States
that are ‘sponsors of terrorism’.
It is also sometimes said that there is a right to intervention in order to
assist the process of self-determination (which is the subject of another of the
principles in the  Declaration), and in order to counteract intervention
by another State—for example, in order to ‘balance’ support for one side in a
civil war. These grounds are, however, much more controversial. Some such
 The Principles of the International Legal System 
interventions might be justified as exercises of self-defence by the interven-
ing State, and some on the basis that the intervention was requested by the
government of the State in which the intervention takes place. In these two
cases the intervention is characterized in such a manner as to fall within the
scope of well-established rules of law.
Certain other kinds of intervention appear to be generally regarded as
unlawful. Interventions to topple or install a particular regime, as in
Hungary and Czechoslovakia and the Bay of Pigs fiasco, are prominent
among them. But there is still much uncertainty in this area, partly
because the lawfulness of an intervention turns upon the reasons for
which it is undertaken and it is difficult to pinpoint the true reasons for
State action. Furthermore, the reasons for State action are almost always
manifold, with some possibly lawful reasons sitting alongside others that
may be plainly inadequate as bases for the intervention; and the reasons
given may themselves conceal very different motives for action.
In the light of this uncertainty within the concept, the broad principle
of non-intervention is tolerable so long as States feel that the exceptions to
it are broad enough, or narrow enough, to be reasonable. As Percy
Winfield once wrote, ‘the non-intervention rule appears to be a patent
consequence of independence with a host of disorderly exceptions fas-
tened on to it’.
Thus far I have been concerned for the most part with armed interven-
tion, of the kind that the International Court held in the Nicaragua case
amounted to a violation of international law. But, as I noted at the outset, the
concept of non-intervention is much broader than this. The breadth of
the principle was reflected in a further General Assembly resolution,
/; the Declaration on the Inadmissibility of Intervention and
Interference in the Internal Affairs of States. That resolution sought to
extend the scope of the principle, setting out a duty not to use economic aid
as a tool of intervention, and obliging States to prevent the use of corpor-
ations under their jurisdiction and control as instruments of political pressure
or coercion. The resolution, adopted by  votes to  with  abstentions,
was opposed by many States, particularly the developed States against which
such provisions were primarily directed, and cannot be regarded as stating or
having passed in its entirety into customary international law. Nonetheless,
though such ‘interferences’ may not amount to violations of the principle of
non-intervention, they may be unlawful on some other ground.

4
P.H. Winfield, ‘The History of Intervention in International Law’,  BYIL , at p. 
(–).
5
ICJ Reports , p.  at paragraphs –, –.
 International Law
Take, for example, the case of jurisdiction having extra-territorial effect,
such as a law forbidding murder committed abroad by a national. That would
be regarded as uncontroversial, even though it purports to criminalize activ-
ity within the jurisdiction of another State. But what of a law forbidding
bigamy committed abroad by nationals, which might be thought necessary
in order to prevent the avoidance of the bigamous liaisons inside the State
that would arise as a result of marriages conducted outside the State? From
the point of view of the legislating State this looks perfectly reasonable.
But would it amount to intervention in the affairs of a State that permitted
bigamous marriages? And what of a law that, say, criminalizes attacks on a
religion. If such a law is applied extraterritorially, could the consequent
limitation on freedom of speech in another State amount to intervention in
that State? Or would a law criminalizing extraterritorial cartels amount to a
denial of the right of the State where such a cartel is based and operates with
the approval of that State, to choose its economic system? There is evidently
a question in such cases of the propriety of the action taken; but the cases
would not necessarily be regarded as instances of the violation of the princi-
ple of non-intervention. It is just as likely that they would be analysed in
terms of the limits upon a State’s jurisdiction, or of human rights.
That overlap is important, and I shall return to it later. For now, however,
I shall let it rest, but underline the curious potency of this principle and its
powerful internal contradictions.

.    -

States have the duty to cooperate with one another, irrespective of the differences
in their political, economic and social systems, in order to maintain international
peace and security and to promote international economic stability and progress,
the general welfare of nations and international cooperation free from differences
based on such differences.
That formulation of the duty in resolution  (XXV) may sound
banal. Who would argue that States are entitled to pursue naked self-
interest, regardless of the consequences for other States, or to obstruct
action taken by other States? But the principle is more significant than it
may initially appear.
First, the principle is notable for what it rejects, which is not simply the
pursuit of national self-interest but the idea of a crusade. Some schools of
thought within certain political ideologies, such as Communism, and
within certain religions, such as Christianity and Islam, have a profound
commitment to the conversion of the whole world. This is usually seen by
 The Principles of the International Legal System 
the crusader as saving or liberating other people from sin or oppression or
some other individual or social deformation. Some of those other people,
blinded by the false consciousness of the proletariat (surely one of the most
wonderful instruments of political analysis ever put at the disposal
of governments and would-be governments) or its equivalent, may not
wish to be saved or liberated; but that is no reason to call off the crusade.
Such thinking is one of the core ideas against which the principle of
non-intervention is directed; but it has an enduring currency and was the
subject of an influential debate at the end of the twentieth century over the
‘clash of civilizations’. During the Cold War, in particular, it was widely
believed that Communist States were constantly plotting to bring down the
governments of Capitalist States and convert those States to communism,
and vice versa. Indeed, the belief in China that the Soviet Union had gone
soft in the global battle for communism was one of the main ideological
reasons for the split between those countries in the s. The Soviet
attitude was pragmatic, and articulated in a legal context in the concept of
‘peaceful co-existence’, i.e., the idea that rather than being locked in a per-
manent antagonistic struggle, the two great social orders could co-exist in a
kind of sporting rivalry from which the superior philosophy (communism)
would eventually and inevitably emerge triumphant. It is this idea that the
principle of co-operation expresses. States may differ in their philosophies;
but that is no reason why they should not work together for the good of all.
The duty to co-operate is so general that it is difficult to see how it can be
enforced; but it can be instantiated. In other words, while it may be practic-
ally impossible to establish that a State is failing to co-operate in the broad
aims of promoting international peace, security, economic stability and
progress, and the general welfare of nations, it is certainly possible to estab-
lish a legal duty to co-operate in specific legal contexts and to measure a
State’s compliance with it. This is done, for example, in the United Nations
Convention on the Law of the Sea, Article  of which stipulates that
‘States bordering an enclosed or semi-enclosed sea should co-operate with
each other in the exercise of their rights and in the performance of their
duties under this Convention’. That obligation was the subject of litigation
in the MOX Plant case, in which Ireland claimed that the United Kingdom
was in breach of its Convention duties in being insufficiently co-operative
in the framing and implementation of measures to defend against terrorist

6
See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order
(London: Simon & Schhuster, ).
7
See, e.g., G. Tunkin (W.E. Butler, trans.), The Theory of International Law (London:
George Allen & Unwin, ).
 International Law
attacks on the United Kingdom’s Sellafield nuclear plant on the shores of
the Irish Sea and on ships carrying nuclear materials to and from that plant.
Although that case was withdrawn from the UNCLOS tribunal in the
wake of a ruling from the European Court of Justice that disputes over
non-co-operation between EU States must go to the European Court,
there can be no real doubt that tribunals can and will rule on compliance
with such specific duties of co-operation.
The duties under the Law of the Sea Convention are paralleled in many
other treaties, particularly treaties relating to environmental protection and
shared resources. Among the most prominent instances are the 
International Convention on Oil Pollution Preparedness, Response and
Co-operation, the  Basel Convention on the Control ofTransboundary
Hazardous Wastes and their Disposal, the  UNESCO Convention for
the Protection of the World Cultural and Natural Heritage, the 
Helsinki Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, and the  Convention on the
Law of the Non-navigational Uses of International Watercourses.
In the field of shared resources there is at least a rudimentary rule of
customary international law mandating co-operation between inter-
ested States. In the Lac Lanoux arbitration in  the Tribunal, faced
with a dispute over the proposed diversion of waters of the River Carol,
which runs from Lake Lanoux through France and Spain, held that
States are obliged to seek, by preliminary negotiations, terms for an
agreement on the development of a shared resource which might affect
other States sharing that same resource. It found no duty actually to
reach agreement, much less a duty to refrain from the development
unless the agreement of the other States is obtained beforehand. But
there is here the reflection of a customary law duty of co-operation. It is
well to think of it as a reflection, rather than a seed, of a customary law
duty because in some contexts there is in State practice a more highly
developed notion of co-operation. In civil law jurisdictions there is a
well-established concept of voisinage, a legal regime that flows from the
sociological phenomenon of the frontier—a concept distinct from that
of the border. A frontier is an area around the border line between two
States. As one text puts it:
frontiers are outer-oriented, with their attention directed to those areas of friend-
ship and danger which lie beyond the state. Boundaries on the other hand are
inner-oriented. They neither denote nor connote relationships. They are the physical
manifestation of the sovereign limits of state territory and power.

8
Hastings Donnan and Thomas M. Wilson, Borders. Frontiers of Identity, Nation and State
(Oxford; New York: Berg, ), p. .
 The Principles of the International Legal System 
In frontier zones there is a special need for co-operation, for example in
the provision of public services such as roads, railways, electricity, water,
and sewage disposal, in the pursuit of criminals, and in the use of shared
resources—boundaries often follow the course of rivers. One area in
which the principles of voisinage are particularly well developed in prac-
tice is the utilization of boundary waters. In Scandinavia, for instance,
there is a long tradition of bilateral treaty-making on the subject, and of
the institutionalization of co-operation by the establishment of binational
mixed commissions with extensive executive and judicial powers.

.     

 -
 
The principle of equal rights and self-determination is stated in reso-
lution  to apply to ‘all peoples’; it was addressed primarily to the situ-
ation of colonies and non-self-governing territories. The idea that
colonies were entitled to independence had been widely accepted by the
s, particularly in the United Kingdom (the mood changed more slowly
in the other colonial powers), even if it was driven more by a reappraisal
of the economic costs and benefits of maintaining the colonial system
than by a reappraisal of the moral and political arguments concerning
colonialism.
In  General Assembly resolution  (XV) had declared the
subjection of peoples to alien subjugation, domination, and exploitation a
fundamental denial of human rights, and affirmed the right of all peoples
to self-determination. Conscious of the potential of that principle for
destabilizing international relations by encouraging distinct ethnic
groups within States (such as the Basques in Spain and the Tamils in Sri
Lanka) the General Assembly went on to declare in resolution  that
‘any attempt aimed at the total or partial disruption of the national unity
and the territorial integrity of a country is incompatible with the Purposes
and Principles of the United Nations’. That effectively limited resolution
 (XV) to the interpretation of self-determination which regarded the
independence of former colonies within their existing borders as the
natural expression of self-determination. The principle was affirmed in
the  International Covenant on Civil and Political Rights, and in the

9
See Malgosia Fitzmaurice and Olufemi Elias, Watercourse Co-operation in Northern
Europe (The Hague: Asser, ).
 International Law
International Covenant on Economic, Social and Cultural Rights adopted
in the same year, and is regarded as an essential condition for the effective
guarantee and observance of individual human rights.
How much further, beyond the colonial situation, does the principle of
equal rights and self-determination reach? Certainly it reaches far enough
to render unlawful the forcible occupation and annexation of inhabited ter-
ritory, as the decision of the International Court made clear in the East
Timor case. Beyond that, the position is unclear. The main problem lies in
deciding what constitutes a ‘people’ entitled to the right. Before the people
determine their future, someone must determine who are the people. Are
the Palestinians entitled to self-determination? The Scots, the Welsh, the
English, Texans, or Falkland Islanders? Attempts have been made to define
the concept of a ‘people’. A meeting of UNESCO experts in  set out a
working definition, referring to the common historical tradition, racial or
ethnic identity, cultural homogeneity, linguistic unity, religious or ideo-
logical affinity. But the political implications of the principle are so great
that all definitions are controversial. And once ‘the people’ is defined, who
determines its future? If the Scots have a right to self-determination, do
the inhabitants of England, Wales, and Northern Ireland also have a vote
on the question? If the people of Northern Ireland are a ‘people’ for the
purposes of self-determination, is the Catholic minority bound to accept
the wishes of the Protestant majority? In  Gibraltarians voted by
, to  in favour of retaining the link with Britain, rather than passing
under Spanish sovereignty. Does the principle of self-determination
entitle the population of Gibraltar to change its mind? Is the United
Kingdom obliged periodically to ask the Gibraltarians if they still wish to
remain a British territory? There are no clear answers to these questions,
and the lack of certainty on such fundamental aspects of the principle
underlines the fact that it was essentially a child of its time, rooted in the
movement for decolonization and unsure of its role beyond that context.

.    

  
The sovereign equality of States is a prominent element of the catechism
of international lawyers, fundamental and unshakeable in theory but base-
less and with few meaningful consequences in practice. Equality matters
10
See General Comment  () of the UN Human Rights Committee, <http://
www.umn.edu/humanrts/gencomm/hrcom.htm>.
11
See Opinion No.  of the Arbitration Commission on the EC Conference on Yugoslavia, 
ILR .
 The Principles of the International Legal System 
in a democracy, where everyone has one vote and the minority may be
legally bound by the decisions of the majority. But there is no democratic
structure on the international plane. True, the ‘one State—one vote’ prin-
ciple prevails in most international organizations; and in circumstances
in which States decide to proceed by the ‘consensus’ procedure, any State,
regardless of size or power, is able to block the adoption of a resolution.
But as there is no international legislature through which the majority
may impose its will on the minority, this point has rather less importance
than it has in a municipal system.
What this principle does do is to articulate a principle that meshes with,
and is arguably implicit in, the other principles set out in the resolution
 Declaration. If we ask which States are secure against threats or uses
of force or benefit from the prohibition on non-intervention the answer is,
each of them. No matter how great or small, each State is juridically equal.
Nicaragua, with a population smaller than that of New York and a land
area comfortably under % that of the United States, was able to bring the
United States before the International Court of Justice to account for the
alleged breaches by the United States of Nicaragua’s rights under inter-
national law. True, the US decided to boycott the merits phase of that case
(having lost its argument that the Court lacked jurisdiction): but that is a
risk in any court. Powerful, slippery, or very popular defendants often suc-
ceed in escaping a summons to a court.
At one time the principle of sovereign equality was widely supported as
the cure for the arrogance with which the Old Powers of Europe treated
the newer, and less powerful States. Condescension and a certain hauteur
may serve the grandees of government well in their dealings with their
subjects at home, but they rarely work well when dealing with the brittle
egos of the grandees of some other State. Diplomacy is easier and more
effective if all are treated with equal courtesy. Of course, no-one believes
that this reflects any real equality between States: neither the superpower
nor the micro-State has any delusions about the distribution of power and
influence on the international plane. There is an international pecking
order as keenly appreciated as any feudal hierarchy: superpowers, regional
powers, local powers, those surviving on alms, and the occasional eccen-
tric who manages to operate at least temporarily outside the normal social
rules. All have their international analogues.

12
But not all. In several economic and financial institutions votes are allocated so as to
reflect the differences in the wealth or financial commitment of the Member States. See
Chapter  below.
 International Law
The principle reflects a genuine belief that communities that have,
through the accidents of history and diplomacy, acquired the status of
Statehood have a right to be left alone to pursue their own economic, cul-
tural, and political ambitions, at least as long as they do not upset their
neighbours. It also embodies the presumption that in international organ-
izations all States will have equal votes and equal access to the procedures
and facilities of the organization, although that presumption may be
rebutted and States may (and do) agree to establish organizations based on
a different distribution of powers and rights. And it reflects the belief that
as a matter of principle laws should apply to all States alike. The equal
application of the law may seem to be an elementary proposition, an axiom
of any legal system: but it is not. As I shall explain in the chapters dealing
with the economic and environmental law, international law has devel-
oped a notion of what some scholars have called the ‘duality of norms’—
that is, the idea that in some fields it is unfair and unrealistic to impose the
same legal obligations on every State. The burdens of improving and pro-
tecting the environment, or of moving further towards free trade, should
be borne by those best able to carry them. One might say that in cases
where differential obligations are imposed the law still applies equally, in
as much as each State is equally bound by the rules that apply to it, and it
is simply the range of applicable rules that varies from State to State. That
is, of course, true; but only at a level of abstraction that conceals the prac-
tical reality, which is that in certain fields the principle of sovereign equal-
ity has been departed from because it has appeared to States to be in the
interests of justice and the efficient promotion of global interests to do so.

.     

The final principle set out in the  Declaration of Principles is that
States shall fulfil in good faith the obligations assumed by them in accord-
ance with the Charter. Not, you will notice, assumed under the Charter,
but in accordance with the Charter. Obligations assumed under valid
treaties and under customary international law are included.
This principle again may appear vacuous. Who would argue that a State
is entitled to approach the fulfilment of its obligations in bad faith? But
that view takes little account of cultural differences.
One of the free entertainments that London offers on a wet afternoon is
the pleasure of going into a Knightsbridge store, taking an expensive
jacket to the checkout desk, and starting to haggle with the sales assistant
over the price. Behaviour that is perfectly normal and expected in the
markets of Abijan or Jerusalem seems to rip a small hole in the social fabric
 The Principles of the International Legal System 
of west London, producing a conversation that proceeds according to two
quite different and irreconcilable sets of rules. The acceptance of laws is
no less prone to the impact of cultural differences. Imagine how a foreign
diplomat, whose education in English included the dissection of The
Merchant of Venice, would see western conceptions of law. When Portia
demands that Shylock take only his pound of flesh and not one drop of
blood she is engaging in the kind of argument that gives lawyers the
reputation of combining pedantry, slickness, and self-righteousness on a
scale beyond the imagining of most mortals. Who would sign a treaty with
Portia as the representative of the other party? Who would subscribe to a
court where a lawyer could raise that sort of argument without fear of
disciplinary action?
Conceptions of the nature and role of law vary significantly from culture
to culture. In the west we are accustomed to the strict interpretation of
laws, and the swift dismissal of cases in court. The idea that one party
can be wholly responsible for a breakdown in contractual relations lead-
ing to a breach of contract is normal. In other cultures it may be differ-
ent. Disputes are talked through; relationships survive breaches of
particular obligations. The law is more flexible, more a guide towards a
just solution than a procrustean bed within which social relations must
be fitted.
The principle of good faith in resolution  (XXV) has two aspects,
and the first is to make plain that in international law literal interpret-
ations and applications of legal instruments must not be allowed to defeat
the evident intentions of those who made them. As I explained in the
context of the law of treaties, the rule in international law is that texts are
interpreted in accordance with their ordinary meaning in their context
and in the light of their object and purpose. A good example of the appli-
cation of the principle of good faith arose in the Rainbow Warrior arbitra-
tion between New Zealand and France. French agents had bombed the
Greenpeace vessel, Rainbow Warrior, while it was in harbour in Auckland,
New Zealand, in  prior to a voyage on which it intended to protest
against French nuclear tests in the Pacific. Fernando Pereira, a photographer
on board the ship, died as a result of the attack. Two French government
agents pleaded guilty to his manslaughter and to criminal damage, and
were sentenced to three years in custody at a French military base on the
Polynesian island of Hao, under an agreement between New Zealand and
France which stipulated that they would be prohibited from leaving the
island for any reason without with the mutual consent of both govern-
ments. Both agents were repatriated to France without New Zealand’s
consent, one (Alain Mafart) because of illness, the other (Dominique
 International Law
Prieur) because she was pregnant and her father had a fatal illness. France
said that the extreme urgency of the situation precluded attempts to
obtain New Zealand’s consent. The arbitral tribunal established to hear
New Zealand’s complaint that France had broken the agreement, found
that France was under a duty to make a good faith effort to try to obtain
the consent of New Zealand to the transfer of the prisoners, and that in
the case of Captain Prieur France had failed in this obligation.
The second purpose of the principle of good faith is simply to reinforce
the point that States are bound by the law and by the treaty obligations that
they assume. Simple as that point is, it encapsulates the essence of the Rule
of Law in international society.

.    

  
  
The Declaration closes with a ‘General Part’, often overlooked, in which
the General Assembly declared that:
In their interpretation and application the above principles are interrelated and
each principle should be construed in the context of the other principles.
And it declared further that:
The principles of the Charter which are embodied in this Declaration constitute
basic principles of international law, and consequently appeals to all States to be
guided by these principles in their international conduct and to develop their
mutual relations on the basis of the strict observance of these principles.
The interrelationship between the principles will be apparent from
what I have said about them. The injunction to develop international rela-
tions on the basis of them requires a word of explanation. The declaration
of the principles was, as the preamble to resolution  (XXV) makes
clear, an exercise in the ‘progressive development and codification’ of
principles already implicit in the structure of the UN Charter, with the
aim of promoting the realization of the purposes of the United Nations.
The resolution was explicitly stated not to prejudice ‘the provisions of
the Charter or the rights and duties of Member States under the Charter
or the rights of peoples under the Charter taking into account the elabor-
ation of these rights in this Declaration’. In other words States may use

13
See  ILR . In the case of Major Mafart the Tribunal decided by a – majority that
France had not breached its obligation.
 The Principles of the International Legal System 
the principles progressively in order to advance, but not to impede, the
purposes of the United Nations, which include the maintenance of
international peace and security, the development of friendly relations
among States based on respect for the principle of equal rights and
self-determination of peoples, and the achievement of international
co-operation on solving international problems of an economic, social,
cultural, or humanitarian character.
In truth, the principles set out in the Declaration function more as
policies than as normative principles. The principles of sovereign equality
and good faith can barely be described as being norms in themselves,
although they may be instantiated in, or in relation to, more specific norms
that are derived from State practice or from treaties. That is not to say that
none of the principles in resolution  (XXV) could operate as substan-
tive norms—there is clearly a substantive norm prohibiting the use of
force, corresponding to the principle in the resolution, for instance. The
point is rather that the principles operate in the context of the resolution not
as rules but as policies. One might say that the  Declaration of
Principles defines the grain of international law, and instructs States to
work with the grain rather than against it in developing international law.
This is one of many examples of the need in legal analysis to be clear as to
the kind of norm that one is dealing with, and its function in the particu-
lar context in which it arises.

.  

The basic principles (or policies) of the international legal system deter-
mine the kind of system that international law is intended to sustain. But
there is one crucial element missing. Resolution  (XXV) says that
States are bound to fulfil their obligations, and indicates what some of
those obligations are; but it does not indicate what the consequences of a
failure to fulfil those obligations might be. Consequences are important.
I may decide that I should check my footnotes more carefully, or the prin-
ciples of a religion may stipulate that I must act in a certain manner; but
unless there are (or I believe that there are) some consequences of failing
to do these things, they are merely aspirations or commitments rather
than rules of conduct. If I fail to comply with them they are simply added
to the lists of my failed resolutions. The same is true of the stipulations of
international law. If no consequence attaches to their breach, we should
question whether they are rules of law or statements of policy or aspir-
ation. Examples abound. If one analyses the so called ‘third generation’
 International Law
human rights, such as the right to a clean environment, it is at the very
least doubtful that they can properly be regarded as rights at all.
Those norms that are true rules of international law are secured by the
principles of State responsibility. In the event that a State breaches the
rule, it incurs responsibility to any State injured by that breach. That
responsibility would typically be discharged by paying compensation for
any injury suffered, or by apologizing for non-material injuries. When we
talk of the State injured by the breach, it is often not literally the State. If
a national—an individual or a corporation—of a State is injured by the act
of another State in breach of international law, the national State of the
injured person is, in effect, deemed to have suffered the wrong and may
bring an international claim on behalf of the injured person (or, ‘exercise
diplomatic protection’ in respect of the injured person, as it is often put—
the phrases mean the same thing).
The Articles concerning State responsibility adopted by the UN
International Law Commission in , while not in themselves binding,
closely mirror State practice and are mostly considered to represent cus-
tomary international law. The Articles deal with a range of crucial issues.
For instance, what counts as conduct of ‘the State’? States are responsible
for acts of their agents, such as the police, the military, and government
officials, but not for the acts of private individuals (though States may be
responsible for a failure to prevent acts of individuals). So, if I travel to
another State and am assaulted by, say, a drunken football fan, the State is
not responsible for that act. But if the State and its agents were aware that
the assault was planned and made no effort to stop it, the State might be
responsible—not for the assault, but for the failure to take reasonable steps
to prevent it; and that failure would violate the duty of the State to take
certain minimum steps to ensure the safety of those within its borders.
This much is plain. But as I mentioned in Chapter , there are difficult
questions as to what counts as ‘the State’. For example, if the religious
hierarchy administers a system of courts and penal sanctions, is that an
exercise of authority imputable to the State, for which the State bears
responsibility, or is it the exercise of powers by a private voluntary associ-
ation, for which the State is not directly responsible? Is a State responsible

14
First generation rights are essentially civil liberties or ‘negative rights’, rules that tell
States to refrain from certain conduct, such as denials of the right to life. Second generation
rights are ‘positive rights’, such as rights to work or to form trades unions. Third generation
rights are complex social rights which move beyond the first and second generation rights of
individuals and which can only be realized through social institutions. Group rights and rights
to a healthy environment or to peace, or to development are examples of third generation
rights.
 The Principles of the International Legal System 
for the acts of a revolutionary movement trying to seize power? (The
answer is, no—though here again the State may be liable for a failure to
takes reasonable steps to protect foreigners against injury by revolution-
ary groups.) Does it make any difference if the revolutionaries succeed
and become the government? (The answer is, yes: acts of insurrectional
movements that become governments are considered to be acts of the
State concerned.)
Another set of provisions in the Articles on State Responsibility
addresses the question of the time at which a breach of international law
occurs, drawing distinctions between completed breaches, such as
uncompensated expropriations of foreign property, and continuing
breaches, such as the continuing unlawful occupation of another State’s
territory. One reason that the distinction is important is that courts and
tribunals may have jurisdiction only over disputes arising or subsisting
after a certain date.
Two groups of the Articles are of particular importance for the devel-
opment of international law. One concerns the responsibility of States for
complicity in the wrongful acts of other States. Article  stipulates that a
State which knowingly aids or assists another State in the commission of
an internationally wrongful act is itself liable. A State which allows its
territory to be used as a base for terrorist groups that attack third States, or
allows its airfields to be used as a base for unlawful attacks on a third State,
would fall within this provision. So, arguably, would States that provide
foreign aid for projects such as the building of huge infrastructure
projects such as dams, which are planned and executed in such a way as to
violate rules of human rights law or environmental law. This development
is particularly interesting, because it heralds the extension of legal respon-
sibility into areas where States have previously carried moral responsibil-
ity but the law has not clearly rendered them responsible for the acts that
they facilitate. Quite how much use will be made of this provision remains
to be seen.
The second group of Articles that are of particular note is that contain-
ing the provisions on ‘circumstances precluding wrongfulness’. These
Articles provide that action taken, for example, in self defence, or in cir-
cumstances of force majeure or distress, are not merely excused (i.e., treated
as unlawful but as excusable), but as not wrongful at all. Another example
is necessity. The Articles provide that action taken by a State which is
necessary to safeguard one of its essential interests, and which does not
seriously impair an essential interest of another State, is not unlawful. As
I mentioned in Chapter , international tribunals have yet to develop a
settled view on what is necessary for the plea of necessity to succeed.
 International Law
The remaining Articles on State responsibility deal with matters such
as the problems of applying concepts of responsibility in circumstances
where there are several claimants, or several respondents. These issues are
particularly significant in the context of environmental and economic
laws, where both the causes of injury and the effect of breaches may be
widely spread. I shall say a little more about this in later chapters. The
Articles also address in some detail the question of the precise meaning of
the duty to make reparation, and the circumstances in which States are
entitled to bring claims against one another—the question of standing to
sue, as it would be described in domestic law.
It is through the concept of State responsibility that the international
legal system acquires its basic coherence. We have primary, substantive,
rules of international law; and we have in the rules on State responsibility
rules that stipulate the legal consequences of violations of the primary rules.
Both are necessary for a viable legal system to exist, as also are the rules
governing the creation of legal obligations which I discussed in the previous
chapter.

.  


It may be helpful at this stage to say something about the ways in which
international responsibility is implemented—by whom, where, and how it
is implemented. These topics are usually handled in textbooks under
some such rubric as ‘dispute settlement’, and at the end of the account of
the substantive rules of international law. Logically, there is a case for that;
but it may tend to suggest that international law is a set of rules applied by
tribunals to settle disputes, whereas I am trying to emphasize that inter-
national law is better regarded as an activity, a way of doing things, rather
than as a set of norms.

.     

   
I need first to raise again the question, who does international law apply
to? Who has rights and duties under international law? Textbooks usually
answer that question by addressing the subject of international personal-
ity, and assert that international law was traditionally, up to around a
century ago, regarded as inter-State law, so that the simple answer would
have been that international law applied to States. I have already noted
that even at that time that answer would have been inaccurate. States
 The Principles of the International Legal System 
concluded agreements with principalities, cities, indigenous peoples,
bodies such as the Order of St John, and others who would not have fitted
squarely within the concept of a ‘State’. And international law recognizes
that international organizations can be legal persons within the inter-
national law legal system.
Broadly speaking, international organizations are comparable to corpor-
ations as persons in municipal law systems. In the Reparations case the
International Court observed that ‘[t]he subjects of law in any legal system
are not necessarily identical in their nature or in the extent of their rights,
and their nature depends upon the needs of the community’. Thus, the
Court considered that the United Nations must have the implied powers
necessary for the performance of its duties, including the capacity to bring
international claims on behalf of its agents injured during the course of
their duties. This plainly gave the Organization some measure of inter-
national personality. This is not the same measure of personality that a
State has: the United Nations cannot, for example, hold sovereignty over
land, as a State could. (That is why disputed areas such as Jerusalem can-
not be put under ‘UN sovereignty’, though they could be administered by
the United Nations—as East Timor was administered by UNTAET, the
United Nations Transitional Administration for East Timor—or on its
behalf by a State—as Australia was the Trustee for the UN Trust
Territory of Papua New Guinea, prior to its independence.)
Similarly, international organizations have limited treaty-making
power and other capacities. The International Court held in the Nuclear
Weapons case that the World Health Organization (WHO) was not com-
petent to request an Advisory Opinion on the question of the legality of
the use of nuclear weapons by a State, because that question related not to
the effects of the use of nuclear weapons on health, but to the legality of
the use of such weapons in view of their health and environmental effects,
and whatever those effects might be, the competence of the WHO to deal
with them is not dependent on the legality of the acts that caused them.
Accordingly, since international organizations do not have the general
competence that States have, but only the limited powers implied by their
specific functions (the ‘principle of speciality’), the WHO was not compe-
tent to put the question before the Court. The UN General Assembly, on

15
The Trusteeship system under Chapter XII of the UN Charter was the successor of the
Mandate system under the League of Nations. Territories under trusteeship were to be nur-
tured to independence or to voluntary association with another State, as they might choose.
The last UN Trust Territory was the Republic of Palau, which became independent in ,
having been administered by the United States; but there is no reason why other territories
should not be put under UN Trusteeship in the future.
 International Law
the other hand, which had made a parallel request for an Advisory Opinion,
was found competent to make the request; and the Court rendered an
opinion as requested.
We might, therefore, say that international law applies to both States and
to international organizations, albeit with some differences following from
their different capacities. But even that would not accurately describe the
scope of application of international law. I referred in Chapter  to the
rights of individuals and corporations to make applications complaining
that one of their rights under the European Convention on Human Rights
has been violated, and to the hundreds of bilateral investment treaties that
give a right to investors of one State to initiate arbitral proceedings against
another State if they or their investment are mistreated. Does this mean
that individuals and corporations also have ‘personality’ within the inter-
national legal system? Or should we treat them, as the older textbooks did,
as ‘objects’ rather than as ‘subjects’ of international law? The question
seems to me to be of little importance, and usually to be misconceived. The
important question is always in some such form as, can X bring this par-
ticular claim against State Y in this particular forum? In these circum-
stances, whether or not we say that individuals are in some general sense
‘persons’ in the international legal system, or ‘objects’ or ‘beneficiaries’ of
certain duties imposed on certain States, is really a matter of taste.
Personality is an inference from the legal rights, duties, and capacities
that attach to an entity: the rights, duties, and capacities are not inferred
from the personality. Whether or not an international organization that
has a very narrow range of competences has sufficient capacity to count as
an ‘international legal person’ is an arbitrary matter, depending entirely
upon the stipulative criteria of personality that are chosen. But whatever
the criteria, they have no practical value, because there are no conse-
quences of meeting the criteria (other than featuring in the list of entities
that do meet the criteria). The UN, for instance, is said by the ICJ to have
international personality; but it cannot be a party to contentious cases in
the Court because Article  of the Court’s Statute limits its contentious
jurisdiction to disputes between States. The answers to all important
questions depend not upon knowing whether an entity is a person, but
upon knowing whether or not it has the particular rights, duties, capacities,
and so on that are in issue in the specific context in question.
There is a more fruitful approach to questions such as, who may imple-
ment international law and, who has rights and duties under international
law? The plain fact is that on one level substantive international law
consists of a bundle of rules and principles that are concerned with how
people should behave; and those rules and principles can be invoked in
 The Principles of the International Legal System 
argument by anyone—State, international organization, NGO, individual,
corporation, parent, employee, or whomever. What effect that invocation
has is a separate question, as is the question of access to the various forums
in which the argument might be made. These points become clear when
the position of international law in domestic legal systems and domestic
affairs is considered.

.   

 
In English law, customary international law is one of the sources of the
common law. Courts will draw on it to decide cases. So, for instance, the
customary international law on State immunity was applied by the English
courts prior to the enactment of the State Immunity Act . (Not every
rule of customary international law is apposite, and some will not be
applied. For example, the House of Lords accepted that the waging of a war
of aggression was a crime in international law, but declined to accept that a
corresponding crime was thereby created in English law.) Treaties, on the
other hand, are not a source of English law. They must be transposed into
English law by legislation if they are to be given effect as law in English
courts. But these clear rules of English law did not prevent the frequent
invocation of the European Convention on Human Rights in English
courts at a time when the United Kingdom had ratified the Convention but
not enacted it into domestic law. Nor was the invocation of the Convention
without effect. As the House of Lords noted in Ex parte Brind, there is
a relevant canon of interpretation in English law, that ‘the courts will
presume that Parliament intended to legislate in conformity with the
Convention, not in conflict with it’. The point applies more generally.
Wherever possible, courts will interpret English law so as to conform with
international law. That is fitting. If the courts were to decide cases in a
manner that violated the United Kingdom’s international obligations, the
United Kingdom would incur international responsibility. In this way the
courts play their part in discharging the State’s legal obligations.
Accordingly, even though the European Convention was not binding on
the courts, its provisions influenced the way in which other rules of
law were interpreted and applied. On the other hand, the constitutional
position of the judges obliges them to uphold the laws of the land; and if
Parliament clearly intends to legislate in a manner that is incompatible

16
Trendtex v Central Bank of Nigeria []  QB ; R v Jones (Margaret) [] UKHL .
17
R v Jones (Margaret) [] UKHL . 18
[]  WLR .
 International Law
with international law, it is right as a matter of general principle that the
judges should uphold the will of Parliament.
In other countries the position is different. In the United States, for
example, treaties have, under Article VI of the Constitution, a status
equivalent to federal statutes; and ‘self-executing’ provisions (which are
sufficiently clear and unequivocal, and intended to create rights and
duties in individuals) will be enforced by the courts. As in the United
Kingdom, customary international law is a source of law in the United
States. The classic statement of principle appears in the decision of the
Supreme Court in The Paquete Habana, where it was said that:
[i]nternational law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as questions of right
depending on it are duly presented for their determination.
Each State (or more properly, each jurisdiction) has its own rules on the
precise status to be given to customary international law and to treaties by
its courts; but the general tendency is certainly to interpret and apply
domestic law in conformity with international law wherever possible. As
any ‘person’—human or legal—in principle has access to national courts,
it is not surprising that international law issues are frequently raised in
national courts. A glance at the cases reported in International Law Reports
or at the on-line International Law in Domestic Courts site, many of which
are concerned with the relationship between municipal law and inter-
national law, will give a good idea of the extent to which international law
has permeated national legal systems.
Of course, not only courts are permeated by international law. One of the
most startling aspects of the massive debate over the propriety of the inva-
sion of Iraq by the United States and the United Kingdom in  was the
extent to which it was pinned to questions of the legality of the action under
international law. In Parliament, in the press, and elsewhere illegality was
generally seen as a serious argument against the propriety of the action, and
(for those who took this view) legality as a serious argument in defence of
the action. That is an instance of international law in action, of it being
implemented by being used to frame debate. Indeed, the use of international
law arguments within government, in the course of inter-departmental
battles for the control of policy, is one of the most potent, if least visible,
ways in which international law is implemented in practice.

19
Foster and Elam v Neilson,  US  (); See Fuji v California,  F.d  (), 
F.d  (),  ILR  ().
20
<http://www.oup.com/online/ildc/>.
 The Principles of the International Legal System 

.   

 
That is not to say that there are no important international tribunals
applying international law. The largest number of pending claims before a
single international tribunal is probably constituted by the backlog of
applications to the European Court of Human Rights, which had around
, cases pending at the end of —a figure expected to rise to over
, by —although around % of the cases lodged with the
Court are ultimately found to be inadmissible. Other human rights bodies,
such as the Inter-American Commission and Court of Human Rights,
have a very much smaller case-load, measured in dozens rather than in
thousands. Outside the field of human rights (and aside from the special
case of the European Court of Justice and the Court of First Instance,
which are institutions of the European Communities—but like municipal
courts still sometimes have to apply international law) the most active area
at present, in terms of the number of tribunals and the number of cases
outstanding before them, is probably investment arbitration. The inter-
national arbitral tribunals established to adjudicate upon alleged breaches
of investors’ rights secured by investment treaties. decide the cases
between the non-State applicants and the State respondents by applying
international law, in much the way that the Iran–US Claims Tribunal,
established after the  crisis in American-Iranian relations precipi-
tated by the unlawful detention of United States’ staff in the embassy
compound in Tehran, handled the , or so claims brought before it.
The United Nations Compensation Commission (UNCC), established
by the UN Security Council in  to determine claims against Iraq arising
from the Iraqi invasion of Kuwait in , is somewhat different. It is technic-
ally not a judicial, but an administrative, body. Security Council resolution
 had determined in advance that Iraq was ‘liable under international law
for any direct loss, damage, including environmental damage and the deple-
tion of natural resources, or injury to foreign Governments, nationals and
corporations, as a result of Iraq’s unlawful invasion and occupation of
Kuwait’, so that the UNCC is in principle only required to deal with ques-
tions of causation and quantum. In practice, however, it has been faced with
some detailed argument on legal issues arising in some of the larger claims.
By  the UNCC had distributed over $ billion, raised from a levy on
Iraqi oil exports. The UNCC received more than . million claims, many

21
See the materials collected at <http://www.investmentclaims.com/>.
 International Law
of them relatively small claims from expatriate Egyptian and Pakistani
workers which it treated as a priority. The claims totalled $ billion. The
number of claims explains, even if it does not entirely justify, the procedures
that the Commission was obliged to follow, which left Iraq with little oppor-
tunity to mount a proper defence.
The tribunals that I have just mentioned accept applications from indi-
viduals. There are others that do not. The most active of these are the
International Court of Justice, to which I shall return shortly, and the
World Trade Organization Dispute Settlement System, which saw about
 cases brought before it in the decade after its establishment in .
Though the number of new cases each year is falling off a little, the WTO
system is so busy that the adjudication of trade disputes can no longer be
viewed as an abnormal or unusual occurrence. Other inter-State tribunals
are less busy. The International Tribunal for the Law of the Sea (ITLOS)
in Hamburg, established under the  United Nations Convention on
the Law of the Sea, has had only fifteen cases in its first eleven years. There
is little sign of any increase in its workload, States appearing to prefer to
resort to the ICJ or to ad hoc arbitral tribunals for the settlement of law of
the sea disputes, although the possibility of litigants choosing their own
five-person chambers of judges from the ITLOS might attract more cases
to it. Even that tribunal looks busy compared to some: the European
Nuclear Energy Tribunal has not had a single case in its fifty-year history.
Then there are the special cases of the international criminal tribunals:
the International Criminal Tribunal for the Former Yugoslavia, the
International Criminal Tribunal for Rwanda, both established by Security
Council resolutions, and the International Criminal Court, established by
the  Rome Statute of the International Criminal Court as a standing
international tribunal to complement the role of national courts in pros-
ecuting genocide, crimes against humanity, and war crimes.
Apart from these standing tribunals, and others like them, there are
also ad hoc tribunals, constituted by States to resolve a specific dispute.
Investment tribunals fall into this category, each tribunal being consti-
tuted for a particular case, there being no standing tribunal. Other prom-
inent examples include the tribunals set up to determine the disputes over
continental shelf delimitation between the United Kingdom and
France, to determine the dispute between France and the United States
over air services, and to determine the boundary and inter-State claims

22
More tribunals are listed on the website of the Project on International Courts and
Tribunals, <http://www.pict-pcti.org/>.
23 24
 ILR ,  (–).  RIAA  ().
 The Principles of the International Legal System 
between Eritrea and Ethiopia. The last was organized by the Permanent
Court of Arbitration—not really a court, but a permanent secretariat in
The Hague that organizes arbitral proceedings.
One might ask why States sometimes prefer ad hoc tribunals to estab-
lished bodies such as the International Court of Justice. The answers
usually given are the ability to hand-pick the judges (each side picking an
equal number, and the presiding arbitrator being chosen by agreement or
appointed by a neutral appointing authority), the consequent possibility
of a quicker decision (because the Parties can select arbitrators who do not
have a great case-load through which they must work), and flexibility
(because the two Parties can agree upon procedures with the tribunal,
rather than being bound by the fixed rules of the court). There is some-
thing in these points; but it must be said that the ITLOS, for example, has
an exemplary record for speedy decision, and that other standing tribunals
can often act with expedition if the Parties so wish. Perhaps the ability to
select a small tribunal is the key advantage, warranting the extra expense
incurred in having to pay the arbitrators’ fees instead of using the facilities
of, say, the International Court (which is funded from the UN budget).
I turn now to the International Court. The Court has jurisdiction over
two kinds of case. The first category is the Court’s contentious jurisdic-
tion. This is limited to inter-State cases: only States, and not other persons
such as international organizations, may be Parties to contentious cases in
the Court. The Court may hear:
any legal dispute concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an
international obligation.
(d) the nature or extent of the reparation to be made for the breach of an inter-
national obligation.
All UN Member States are ipso facto Parties to the Court’s Statute, and
any of them is eligible to bring a case before the Court. If a State violates
obligations under international law that it owes towards other States, any
of those other States is entitled to complain and to obtain redress, usually
in the form of a return to compliance by the State concerned and perhaps
an apology and compensation for any injury caused.

25
<http://www.pca-cpa.org>.
26
ICJ Statute, Article ().
 International Law
The contentious jurisdiction of the International Court can only be
invoked by and against States that have specifically agreed to submit to
the jurisdiction of the Court: it is not enough that a State is a Party to the
Court’s Statute. There are several ways in which States may submit to
the jurisdiction. They may accept the so-called ‘compulsory jurisdiction’
of the Court under Article () of its Statute—confusingly known as the
‘Optional Clause’—by making a declaration that they accept the Court’s
jurisdiction without the need for any further agreement. That declaration
may be made either unconditionally or subject to reservations, imposing
time or subject-matter limits upon its application. The Court then has
jurisdiction over a dispute identified in an application instituting pro-
ceedings if, but only if, the dispute falls within the scope of the accept-
ances of jurisdiction in the declarations of both Parties. Around  States
have made such declarations, and the United Kingdom is the only one
of the five permanent members of the UN Security Council to have a
declaration in force, France having withdrawn its declaration after it was
brought before the Court in the Nuclear Tests cases, and the United States
withdrawing its declaration after the Nicaragua case. (Neither China nor
Russia has ever accepted the jurisdiction of the Court under Article
().) This is, of course, not really ‘compulsory jurisdiction’: it is a stand-
ing acceptance of the Court’s jurisdiction in respect of all, or defined
categories of, future disputes with other States.
The reservations to Optional Clause declarations can be extensive. The
UK, for example, excludes from its acceptance of the Court’s jurisdiction
‘disputes with the government of any other country which is a Member
of the Commonwealth with regard to situations or facts existing before
 January ’, thus excluding ‘colonial’ disputes. Potentially even wider
are the reservations exemplified by the provision in Sudan’s declaration,
excluding from the Court’s jurisdiction ‘disputes in regard to matters
which are essentially within the domestic jurisdiction of the Republic of
Sudan as determined by the Government of the Republic of Sudan’. Such
‘self-judging’ or ‘automatic’ reservations are controversial. The best
known was the United States’ reservation, included as a result of the
Connally Amendment during the passage of the declaration through the
Senate. It purports to permit the State making the declaration to decide
that any matter is within its domestic jurisdiction, but the Court has
shown some reluctance to accept such reservations at face value. It is a
basic rule of international law that tribunals, once established, have the

27
See the judgment and separate opinions in the Norwegian Loans case, ICJ Reports ,
p. , and the Interhandel case, ICJ Reports , p. .
 The Principles of the International Legal System 
power to interpret the texts that establish their jurisdiction; and there are
surely some matters, such as boundary disputes, which the Court would
be entitled to rule cannot, on any good-faith interpretation, fall within the
domestic jurisdiction of a State.
Rather than make an Optional Clause declaration, many States prefer to
decide on a case-by-case basis whether to go to the Court. Sometimes this is
done literally, by concluding a special agreement or compromis with the
other party to the dispute, providing for its submission to the Court.
Hungary and Slovakia did this in the case concerning the Gabč ikovo-
Nagymaros Project, for example. Sometimes this is done by accepting ICJ
jurisdiction in the dispute settlement clauses (‘compromissory clauses’)
that are included in many treaties—and sometimes forgotten until another
State invokes them. In this way jurisdiction is confined to questions con-
cerning the interpretation or application of the treaty in which the clause is
found. In the Nicaragua case the Court’s jurisdiction was founded in part
upon a  Bilateral treaty between Nicaragua and the United States; the
Oil Platforms case was brought by the United States against Iran on the basis
of a compromissory clause in a  Treaty of Amity between the two
States; and the Hostages case was brought on the basis of compromissory
clauses in the Vienna Convention on Diplomatic Relations, the Vienna
Convention on Consular Relations, and other treaties.
It is also possible for a State to throw down the gauntlet, and institute
proceedings in the Court in the hope that the other Party will accept the
Court’s jurisdiction even though it has not already submitted to it. This
was done in the case concerning Certain Criminal Proceedings in France in
. Congo lodged an application with the Court seeking the annulment
of French proceedings against the Congolese President and Minister of
the Interior and others in respect of crimes against humanity and torture.
To the surprise of those who thought that States avoid appearing in courts
as respondents wherever possible, France decided to accept the ICJ’s
jurisdiction and defend the action.
The second basis of jurisdiction I have mentioned already. The ICJ may
give Advisory Opinions where requested to do so by certain designated
UN organs and specialized agencies, such as the General Assembly and
Security Council. It did so, for example, in the Reparations case, the
Nuclear Weapons cases, and the Western Sahara case, and also in the case
concerning the Wall in Occupied Palestinian Territory. Advisory Opinions
are authoritative statements of the law but do not technically bind any
particular State because there is no State Party to the proceedings. It is
quite wrong to regard them as mere recommendations having no legal
weight. It is practically inconceivable that the Court would take a different
 International Law
view of the law in a contentious case from that which it had recently taken
in an Advisory Opinion. Nonetheless, the theory is that the Advisory
Opinion is given to assist the UN body in the discharge of its functions,
with the International Court acting in its role as principal judicial organ
of the United Nations and a member of the United Nations’ family.

.  

 
Many international obligations concern the way in which a State treats
nationals of other States. There is in international law what is sometimes
called an ‘international minimum standard of treatment’ for aliens, which
obliges States not to treat them in a way that would:
amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency
of governmental action so far short of international standards that every reason-
able and impartial man would recognize its insufficiency.
A State may not arbitrarily imprison an alien, or confiscate property
without compensation, or make no effort to protect aliens from foreseeable
attacks by mobs, for example. But, while individuals are protected by these
rules, they cannot be Parties to proceedings before the ICJ. When a person
is injured in breach of such duties, it is the national State of the victim
which may present an international claim against the wrongdoing State, on
behalf of its injured national—which, in other words, may exercise diplo-
matic protection on behalf of the national. As it was put in one case:
It is an elementary principle of international law that a State is entitled to protect
its subjects, when injured by acts contrary to international law committed by
another State, for whom they have been unable to obtain satisfaction through the
ordinary channels. By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights—its right to ensure, in the person of its subjects,
respect for the rules of international law.
One consequence of this is that the individual has no right to diplomatic
protection: it is for the State to decide in each case whether or not to
pursue the claim. Another is that if the State does pursue the claim and
recovers compensation, the individual has no absolute right to that
compensation, which is the property of the State.
28
The formula used in the much-quoted Neer case, US v Mexico ()  RIAA .
29
Mavrommatis Palestine Concessions case, Greece v UK () PCIJ Reports, Ser. A, No. ,
p. .
 The Principles of the International Legal System 
The nationality of individuals is determined by the law of the State that
claims him as a national. In the Nottebohm case Liechtenstein sought to
bring a claim before the International Court in respect of the mistreatment
by Guatemala of Friedrich Nottebohm. He was a German national who—
no doubt with an eye to the inconveniences which German nationality
could entail during wartime—had become a Liechtenstein national
(thereby losing his German nationality) during a very brief trip there
in , but had spent most of his adult life in Guatemala, where he
maintained his business activities. While his Liechtenstein nationality
would almost certainly have been treated as valid for the purposes of
Liechtenstein’s jurisdiction over him (he had, after all, freely chosen to take
that nationality), the International Court held that Liechtenstein, given
the absence of any real connection with Nottebohm, could not bring a
claim in respect of his alleged mistreatment against Guatemala, with which
he had very strong and long-lasting connections. The difference is that
while jurisdiction was a matter between Nottebohm and Liechtenstein, the
Court considered that a third State such as Guatemala could not be obliged
to accept the consequences of such an artificial arrangement.
An individual may have two or more nationalities: for instance, the
nationality of one or both parents, and in addition the nationality of the
State where he was born. In these circumstances international law permits
either or any of the national States to bring a claim against a third State,
and permits the State with which he has the closest connection—the State
of dominant nationality—to bring a claim against the other national State.
If a person has no nationality (which might happen to children born to
refugees temporarily within a State, for example), the International Law
Commission has proposed that diplomatic protection should be exercis-
able by the State in which they are lawfully and habitually resident.
The nationality of corporations is more problematic. Individuals may
set up a corporation in a State whose nationality they do not have and with
which they may have no real connection. It was established in the Barcelona
Traction case, where Belgium tried to bring a claim in the ICJ against Spain
on behalf of the % of shareholders in the Barcelona Traction Company
who were Belgian, that where a wrong is done to a company it is the national
State of the company, not that of the shareholders, which should bring the
action, and that the nationality of a company is determined by its place of
incorporation and/or the place where it has the seat of its management. In
that case, the company was Canadian. This can be problematical where, as

30
See Article  of the ILC Articles on Diplomatic Protection, , <http://
untreaty.un.org/ilc/texts/instruments/english/commentaries/__.pdf>.
 International Law
is often the case, foreign investors establish a subsidiary in the host State
as a vehicle for the investment. If the host State mistreats the company, it
will be mistreating one of its own nationals, and no other State will be able
to complain. The Court in Barcelona Traction raised the possibility (with-
out deciding the point) that in such circumstances the national State of the
shareholders might be permitted to bring the action. Whether or not that
is indeed the law, a similar result is achieved in many hundreds of bilateral
investment treaties where foreign investors are permitted to initiate
proceedings in respect of investments that they directly or indirectly own
or control; and a similar possibility is admitted in Article  of the
Convention establishing ICSID, which oversees many of the arbitrations
arising from investment treaties.
Diplomatic protection is not confined to proceedings before a court
or tribunal: it extends to all formal procedures by which one State seeks
to implement the responsibility of another. And it may be exercised in
respect of isolated wrongs to particular individuals or of much larger
claims. Mass claims are often handled by special mechanisms established
in the claimant State. Thus, when the United Kingdom pursued claims
against China arising from damage to property and expropriations during
the Communist revolution, the Foreign Compensation Commission, a
body established under the Foreign Compensation Act , first assem-
bled details of all British claimants. The British Government then negoti-
ated with China a settlement in respect of all those claims. The
compensation paid (which was, as is practically always the case, signifi-
cantly less than the total of the amounts claimed) was handed over to the
United Kingdom; and the Foreign Compensation Commission then
distributed the monies pro rata among claimants whom it determined to
have provided sufficient proof of their losses.

.  

 
I have described some of the main courts and tribunals in which inter-
national law is applied, but I emphasize that this is merely one way in
which international law is applied. Consider a comparison with, say,
company law. There are many thousands of companies, all organized on
the basis of company law, mostly complying with the prescribed proced-
ures for the appointment of directors, holding of meetings, making of
contracts, filing of accounts, and so on. None of this requires any recourse
to courts or tribunals: the law establishes the basic framework for corpor-
ate life, and it is largely observed. So, too, with international law. If a State
 The Principles of the International Legal System 
fails at some point to observe its obligations, the usual response would be
to put the matter right when the matter is drawn to its attention. If it does
not do so immediately, the matter may be raised more formally, and nego-
tiations may begin. There are few differences that are not resolved at this
stage. If the Parties are unwilling to negotiate directly, sometimes a medi-
ator or conciliator will be involved. The Secretary General of the United
Nations, or officials in a regional organization, might offer to see if they can
find an amicable way out of an impasse. A fact-finding commission may be
established to clarify disputed facts. These are all ways of settling inter-
national disputes peacefully, as Article  of the UN Charter recognizes.
It may appear that the law is absent from these relatively informal
procedures, and that the Parties are free to adopt solutions that ignore the
law. That may be so in theory; but the reality is that the law, and perhaps
the possibility of litigation, always sits in the background. The Parties will
constantly be concerned to know what are the best and the worst alterna-
tives to a negotiated agreement; and if there is a court or tribunal with
jurisdiction over the dispute, the legal position will heavily influence the
terms of the settlement. Even if there is no such tribunal, it is very likely
that the argument that a State is in breach of its legal obligations will be
prominent in exchanges between the Parties, and that any defences
offered by the respondent State will likewise be couched in legal terms.
Thus is international responsibility brought to bear. The most successful
laws are those that do not require action before the courts to secure their
observance.
 

States

. : ,

,  
When we think of the world systematically we usually think of it as divided
into States, like the differently coloured areas on an atlas; but the precise
nature and the significance of that division are elusive, even in everyday
experience. For many centuries prior to the modern period, people trav-
elled across continents without encountering borders. There were in
many places kingdoms or other polities: but they were defined, as it were,
from the centre outwards. There would be one or more central cities, the
seat of power; and the kingdom was an often ill-defined area beyond the
city which was regarded as the territory of the king. For instance, a series
of Hittite treaties concluded in the thirteenth century BCE define the
lands and frontiers of kingdoms established by Hattusili III. They do so by
referring not to lines, but to locations. It is said that Mount Hawa, and the
city of Sanantarwa and the sinkhole of the city of Arimmata are the fron-
tiers; but what is meant is that those locations are within the kingdom, and
that the frontier in the sense of the boundary with neighbouring kingdoms
lies somewhere in the areas connecting those locations. It is perhaps more
accurate to say that these kingdoms had spheres of influence than that they
had frontiers. Precise linear boundaries, such as those marked out by the
shores of island kingdoms, or by man-made structures such as roads
(Watling Street divided the England of Alfred the Great from the Danish
territory in England) or structures such as the Great Wall of China and
Hadrian’s Wall, were the exceptions.
In the eighteenth century, in Europe at least, treaties were still being
concluded that provided for the creation of buffer zones between two
States, to be left as uninhabited wastelands with the consequence that
there was no practical necessity to determine the precise line of the fron-
tier. The Treaty of Constantinople between Russia and the Ottoman
Empire in , for instance, created a twelve-mile frontier zone between
them in the Crimea. But as surveying and mapping techniques were
refined later in the eighteenth century, the general trend in treaty practice
 States 
shifted to the stipulation of much more precise boundaries, defined by
physical markers. Some such markers were existing features such as rivers
or roads, but others were specially installed by Commissions established
to mark out the agreed boundary on the ground.
The drawing of lines was a shift in the perception of what it meant to be
a State, which developed alongside the idea that the entry of foreigners
and goods into the State should be systematically controlled. We tend to
regard the twentieth century as the time in which the world shrank into a
global village, as people, goods, and messages moved quickly and effort-
lessly across national boundaries. Paradoxically, it was the twentieth
century that saw the major efforts to turn national boundaries that had
been drawn on maps into physical obstacles to travel. Passports did not
become universally common requirements to enter a State until the twen-
tieth century. Prior to that time passports were usually not required to
enter a State, but those who could afford it might carry passports in order
to identify them as subjects of another sovereign or State, and perhaps
secure them a degree of respect and safety that could not be taken for
granted. Travellers in the eighteenth and nineteenth centuries roamed
Europe, Asia, Africa and the Americas freely. As J.M. Keynes remarked,
until  a man
could secure forthwith, if he wished it, cheap and comfortable means of transit to
any country or climate without passport or other formality, could despatch his
servant to the neighbouring office of a bank for such supply of the precious metals
as might seem convenient, and could then proceed abroad to foreign quarters,
without knowledge of their religion, language, or customs, bearing coined wealth
upon his person, and would consider himself greatly aggrieved and much sur-
prised at the least interference.
Security fears during World War One, underscored by the unprece-
dented movement made possible by the rapid development of rail travel,
prompted the imposition of comprehensive mandatory requirements for
passports and visas in order to cross frontiers. This was the decisive move
that continues to mould our current perception of the division of the
globe into pink, yellow, green, and blue areas between which we move
passport in hand, although for many the effective ‘border’ of the State is
no longer at its periphery but at its heart, in the bowels of one of the State’s
international airports.
There are three concepts at work in what I have said so far: first, that of
the territory of the State, which is an area; second, that of the border of the
1
John Maynard Keynes, The Economic Consequences of the Peace (London: Macmillan,
), Chapter .
 International Law
State, which is a line having adjacent to it a vaguer ‘frontier’ zone; and
third, that of the State itself, which is a legal concept that denotes the
political society that is based in the territory. Each is a legal concept,
though not only a legal concept. Geographers and political scientists, for
example, also use these concepts, although not always in the same way that
international lawyers use them. Each of the concepts has a different role;
and I shall say a little about each in turn.

.  

First, the concept of State territory. The underlying question addressed
here is, how do we know that this piece of territory belongs to this State
rather than to another?
The concept of the State is rooted in the concept of control of territory.
The purpose and role of every State is to control activities within its bor-
ders so far as possible, or more accurately to ensure that activities within
its borders are not regulated by any other State. That idea is expressed in
international law through the concept of sovereignty. International law
speaks of a State ‘having sovereignty’ over its territory, rather than ‘own-
ing’ that territory. As it was put by the Swiss Professor Max Huber, the
arbitrator in the Island of Palmas case, which concerned the conflicting
claims of the USA and the Netherlands to a Pacific island,
Sovereignty in the relations between States signifies independence. Independence
in regard to a portion of the globe is the right to exercise therein, to the exclusion
of any other State, the functions of a State.
Huber referred not to what independence is but to what sovereignty sig-
nifies; and the contrast is interesting. In international law, discussions of
sovereignty commonly focus on the principles of non-intervention in the
affairs of other States, prohibitions on the use of force and coercion, the
principles of sovereign equality and sovereign immunity, and the like, all
of which are said to be in some sense dependent upon or derived from the
concept of sovereignty (though I suspect that the relationship is precisely
the opposite, and that sovereignty is a concept extrapolated from these
components).
Sovereignty is an elusive concept—in philosophical terms, an essen-
tially contested concept—with a complex genealogy as a topic of debate
in political theory. It makes sense to discuss the likely effect of a particu-
lar policy or action on the ‘sovereignty’ of a State; and that normally
entails references to a knot of concepts centring on two inter-related
ideas—the formal independence of decision-making of the State, and its
 States 
freedom to exercise that independence in practice. It is less clear that the
concept of sovereignty has much use in international legal reasoning. It
appears to add little, if anything, to the legal consequences that flow from
its component principles, such as non-intervention. But the practice is to
express the relationship between a State and its ‘own’ territory in terms
of the State’s sovereignty over its territory, with the consequence that one
State may be sovereign and another may actually occupy the territory, as
China was sovereign over the territories that Britain leased from it in
Hong Kong, and Cuba is sovereign over the US base at Guantanamo, for
example.
It is tempting to begin discussions of State territory by explaining how
it is that States first came to have the legal right to possess their territory.
Such a perspective is nonsensical. The world did not begin as a tabula rasa,
gradually portioned out as States were established. Every person, every
nuclear and extended family, every tribe, needs its private space. Family
lands, kingdoms, and States emerged as groups, first establishing their
control over central areas and then reaching out towards other centres of
control. Borders emerged where the powers of neighbouring States,
attenuated by distance from the centres of power, contested with each
other and reached a kind of low-level equilibrium, rather as drying mud
cracks into distinct tiles. The border was like a political isobar, the line
along which the desire and capacity of each of the adjacent rulers to
expand his territory more or less balanced the determination of his neigh-
bour to hold on to his own lands.
International law is not concerned with the mythical histories by which
States first gained their territory; but it does speak of the processes by which
sovereignty over territory changes hands, and it operates a presumption
against disturbing states of affairs that have long existed peacefully—of
letting sleeping dogs lie. If we ask what right a State—say, the United
Kingdom or India—has to its territory, the answer given by international
law is pragmatic. It has its territory (or, more accurately, the State is recog-
nized as having sovereignty over its territory) because so far as we can tell it
has acquired that territory by processes that are recognized as lawful.
There is nothing peculiar in this. In domestic law our right to land
depends in most cases upon the fact that we paid for it, or inherited it, or
acquired an interest in it by marriage. The same will be true of the person
from whom we acquired it, and of the person from whom they acquired it,
and so on. The fact that we may not be able to explain how the land came
to be owned by someone, say, more than three hundred years ago does not
matter. The critical point is that the land is now regarded by the commu-
nity at large as the property of the people who have acquired it.
 International Law
There may, in fact, have been defects in title at some point. But inter-
national law has a robust approach to this possibility. International law
must work with the world as it is, and make the best of what the position is
now. It is not the role of international law to give redress to centuries-old
grievances. This pragmatic approach is implemented through two power-
ful concepts: intertemporal law and prescription.

.    

   
The doctrine of intertemporal law says that the legal effect of conduct is to
be determined in accordance with the law as it was at the time of the con-
duct. For example, since the outlawing in the mid twentieth century of the
use of force in international relations it has been unlawful to gain territory
by the use of force (even force used in self-defence). But large areas of the
globe were incorporated into the States of which they are now part as a
result of uses of force. According to the doctrine, however, if territory
could lawfully be gained by force at the time that those areas were acquired
by force, the State had and still has good title to them.
There is another side to the doctrine. It requires that States keep up
with the changing demands of the law. It is sometimes said (probably
wrongly) that during the fifteenth century territory could be acquired by
discovery or by papal grant. If an expedition sent out by a State ‘discov-
ered’ an island and claimed it, the island would belong to the State. It is
also said that land could be acquired by papal grant. In  the (Spanish)
Pope Alexander VI, exercising the exclusive power of the papacy to
authorize ‘missions to the heathen’, issued papal bulls, including the
famous bull inter caetera, which granted to Spain:
all islands and mainlands found and to be found, discovered and to be discovered
towards the west and south, by drawing and establishing a line from the Arctic
pole, namely the north, to the Antarctic pole, namely the south, no matter whether
the said mainlands and islands are found and to be found in the direction of India
or towards any other quarter, the said line to be distant one hundred leagues
towards the west and south from any of the islands commonly known as the Azores
and Cape Verde.
Lands already in the possession of a Christian king were excluded from
the grant. Portugal, then competing with Spain in its colonial expansion,

2
Because the right of self-defence extends only as far as the removal of the threat. Hence,
for instance, claims that Israel is entitled to retain lands seized during wars in which it acted in
self-defence are misconceived.
 States 
was dissatisfied with the grant and in a diplomatic coup succeeded in
renegotiating its terms in the  Treaty of Tordesillas, fixing the bound-
ary ‘at a distance of three hundred and seventy leagues west of the Cape
Verde Islands’. Spain took the lands to the west, and Portugal those to the
east of the line. (So it is that Portuguese is spoken in Brazil and Spanish
elsewhere in Latin America.) In fact, the dominant view came to be that
neither discovery nor papal grant was truly a source of legal title. As inter-
national law developed it became accepted that in order to acquire title to
territory it was necessary actually to occupy it. Simple discovery or papal
grant was not sufficient, if it ever had been, to confer title; and States would
have had to maintain their title in accordance with the developing law.
Discovery, for instance, would have had to be followed up by occupation.
There are other antique ‘modes of acquisition’ as they are known of
territory in international law. Much territory has over the centuries been
ceded by one ruler to another, often in the context of a marriage. Bombay
and Tangier, for example, were part of the dowry of Catherine of Portugal
when she married Charles II of England in . The Habsburgs were
particularly good at acquiring territories in this way, giving rise to the
dictum ‘Bella gerant alii; tu felix Austria nube’—‘Let others wage war; but
you, happy Austria, marry’. The phrase is sometimes attributed to
Matthias I Corvinus, the fifteenth-century king of Hungary and Bohemia
who spent much of his reign gaining territory the hard way, using armed
force, which was for many centuries the main process by which rulers
expanded their lands.
Some territories were ‘sold’, in the sense that they were ceded by one
State to another for monetary compensation. The United States acquired
Louisiana from France for m francs, Florida from Spain for $m, and in
what were even better bargains Alaska from Russia for $.m and Texas,
New Mexico, and Northern California from Mexico for $m. It is some-
times said that the biggest real estate deal in history was the Louisiana
Purchase of April  (or the tenth day of Floréal in the eleventh year of
the French Republic: revolutionaries tend to believe that when their own
lives are transformed by the acquisition of power, everyone else’s life should
also be given a new beginning). It was not: it was a cession of territory,
together with its citizens and with rights of political control and governance,
in exchange for monetary compensation. These were not ‘sales’ of land in
the domestic sense. Private purchasers can only ever buy a legal interest in
land: a freehold or leasehold. The ultimate property rights always vest in the
State as sovereign. Indeed, it is the law of the State that creates and secures
the legal interests of private landowners. Thus, no State can ever be bought
up by private buyers. If all the land in the United Kingdom were purchased
 International Law
by a foreign State, the United Kingdom would still remain under British
sovereignty. The critical question is not who owns the real estate in the
territory, but who governs, who is sovereign over it.
Yet other territories have been exchanged. Sardinia was exchanged for
Sicily, between the Duke of Savoy and the Habsburg Emperor Charles VI.
More recently, Belgium and Germany transferred parcels of frontier land
in the s in order to create a more practical border.
In all these cases, however, the mere abstract transfer of land would be
insufficient to transfer title if the former sovereign continued to treat the
territory as its own and the new sovereign did nothing to assert its own
sovereignty over the territory. One might almost say that cessions and
sales of territory were merely the factual background which in practice
ensured that the occupation by the new sovereign—the transferee—was
not challenged by the former sovereign, and that it was the assertion of its
rights by the new sovereign that was the effective cause of the change of
sovereignty.
Title to territory not already under the sovereignty of some other
recognized State—terra nullius, as it is known—could be acquired simply
by occupying it. States adopted the position that the first State to ‘take’ the
land should have title to it, and applied this approach with some enthusi-
asm during the era of European ‘discoveries’ of foreign lands in the
sixteenth and seventeenth centuries. This pragmatic solution was given a
degree of dignity by resting it on an analogy with the Roman law right to
acquire res nullius—a thing belonging to no-one—by occupatio, that is, the
taking of possession of a res nullius with the intention of becoming its
owner. Classical Roman law appears not to have applied the concept of res
nullius to land, except in the case of islands emerging from the sea: but no
matter. International law has always owed more to bricolage and pragma-
tism than to the cold logic of bloodless scholarship. As long as effective
control was established over the territory in question in the name of an
existing State (or occupation à titre de souverain, as it is known), that was
sufficient to confer sovereignty.
‘Effective control’ meant simply the area that could in practice be con-
trolled from the occupied area. Typically, occupation of a coastal strip
would give effective control over the hinterland, unless that control was
contested by an indigenous power or a rival State. The degree of activity
needed to establish effective control over uninhabited or sparsely inhab-
ited territory was much less than that needed in inhabited territory.

3
I deal with the question of recognition below.
 States 
It is sometimes supposed that the European States marched into Africa,
Asia, and the Americas and announced that they were acquiring uninhab-
ited lands to be brought under their sovereignty by occupation. That is not
so. Lands occupied by communities which stood their ground and dealt
with the colonizers, were generally not regarded as unoccupied. Much of
the process of colonization was conducted through agreements with the
indigenous populations of the colonized territories; and elaborate legal
and theological arguments were developed in an attempt to legitimize the
colonial endeavour. While there was no doubt a good deal of chicanery and
threats or uses of force, the appearance of consent was regularly sought.
Many of the agreements were trade agreements, often concluded with
local political leaders by the Chartered Companies instructed by
European governments in the seventeenth and eighteenth centuries to
occupy foreign lands in the name of the Crown. Over the years the net-
work of such treaties and contractual agreements became overlain with
layers of governmental activity: legislation and taxation, for instance,
applied to the colonial territory, so that title to the territory became
consolidated through the display of effective and unchallenged control—
the display, in short, of sovereignty.
These distinctions between modes of acquiring territory are a modern
superimposition upon the historical record. The distinction between
acquisition of territory by occupation and acquisition by agreement, for
instance, was often blurred. Each European power had its characteristic
ceremony of possession to signify the commencement of the assertion of
effective control. In South America Christopher Columbus, following
instructions from the Spanish King and Queen, planted their standards in
the ground and solemnly declared the land under Spanish authority.
Elsewhere in South America the French organized elaborate processions,
at the climax of which the Tupi Indians themselves placed the French flag
in the land. In North America, the Dutch (like the Portuguese) made
meticulous maps; while Sir Humphrey Gilbert summoned ‘both English
and strangers’ to witness his taking possession of the harbour of St John in
Newfoundland ‘and  leagues every way’, by a ceremony in which his
commission from Queen Elizabeth was read and he ‘had delivered to him
(after the custome of England) a rod and a turf of the same soile’, whereby
the land became:
a territorie appertaining to the Queene of England, and himself authorised under
her Majestie to posesse and enjoy it. And to ordaine laws for the government

4
See Mabo v Queensland ()  ALR , ()  ALR ;  ILR , .
5
i.e., a twig and a lump of soil.
 International Law
thereof, agreeable (so neere as conveniently might be) unto the laws of England:
under which all people coming thither hereafter, either to inhabite, or by way of
traffique, should be subjected and governed.
Such ceremonies persist today. Rockall, a rock approximately the size of a
tennis court lying about  miles west of the Outer Hebrides, was
annexed by the United Kingdom in  by a boarding party from HMS
Vidal, who cemented a small plaque onto the rock to record the event.
Occasional visits since then have sufficed to maintain British sovereignty
over the rock.
The need to occupy territory as sovereign meant that in the eyes of
international law private individuals could not establish their own States.
The Chartered companies that occupied foreign lands were acting in the
name, or at least under the authority, of whichever State had granted the
charter. More unusually, a private person, James Brooke, was given a king-
dom in Sarawak by the Sultan of Brunei, where he was installed as the
White Rajah in . (The Law Officers in the United Kingdom subse-
quently advised that as a matter of British constitutional law the Queen
was legally competent to permit one of her subjects to assume the sover-
eignty of a foreign State, and to recognize him as such.) Sarawak was even-
tually relinquished to the United Kingdom as a Crown colony in  by
Brooke’s great-nephew.

. 
Whatever defects there may have been in the original title of a State to a
particular parcel of territory, they can be cured by time and acquiescence,
thereby building up a title based on prescription. Gibraltar offers a good
example. Title to ‘the town and castle of Gibraltar, together with the port,
fortifications, and forts thereunto belonging’ was ceded by Spain to Great
Britain by Article X of the Treaty of Utrecht, . There is, however, a
spit of land, where Gibraltar’s airstrip lies, between the foot of the rock of
Gibraltar and the present frontier fence with Spain. In the s Spain
claimed that this land was not part of the territory ceded in . The
United Kingdom considered that it was ceded in  but also asserted an

6
Richard Hakluyt, ed. by Janet Hampden, Voyages and Documents (London: Oxford
University Press, ), p. . These ceremonies are analysed in the fascinating study by
Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World –
(Cambridge: Cambridge University Press, ).
7
See James Fisher, Rockall (London: Geoffrey Bles, ). States tend to want sovereignty
over such tiny, god-forsaken rocks and islets (i) to stop any other State getting them, and (ii)
because they may claim maritime zones around them.
 States 
alternative title, based on the fact that the strip has been under exclusive
British jurisdiction since at least  and that successive Spanish
Governments acquiesced in the situation and forfeited any title to the area
concerned which they may at one time have possessed.
Britain also claims that the cession of  included the territorial sea
around Gibraltar, a claim which Spain, Portia-like, disputes on the
ground that no mention of the surrounding sea appears in the Treaty of
Utrecht. In order to prevent this claim from dying through acquiescence,
Spain has protested against the British claim and engaged in other actions
such as sending a Spanish warship into the territorial sea and launching a
helicopter from it—something that foreign ships in the territorial sea can-
not lawfully do without the consent of the coastal State, and thus an
implicit assertion that the waters are Spanish. It is an elegant example of
the use of symbolic acts to delimit sovereignty—a kind of twentieth-
century ceremony of possession.
Prescription is international law’s way of deciding when it is appropriate
to draw a line under the untidiness of history. If a State has been in peace-
ful possession of a parcel of territory for some time, it will be regarded as
having acquired good title to that parcel unless its right to possession is
challenged. Challenges may take many forms—diplomatic notes, symbolic
acts such as the Spanish helicopter flight, attempts to refer the dispute to
an international tribunal, and so on. Some claims are kept alive for a long
time by such moves, and the acquisition of title by acquiescence is blocked.
For example, Guatemala claims half of the territory of Belize; Portugal
apparently still claims that the village of Olivenza is owing to it under an
 agreement concluded at the Congress of Vienna; and for many years
Cambodia maintained a claim to Khmer Krom, an area in the south of
Vietnam. But now that a State may programme a computer to fax a note of
protest every year, there must surely come a time when mere verbal
protests are not enough and some more decisive action, such as an invita-
tion to refer the dispute to the International Court, must be taken if a claim
by a State not in possession of the territory is to be kept alive. One cannot
say how long that time might be, whether decades or centuries, though the
period is likely to be shorter in the case of near and inhabited areas than of
distant or uninhabited ones simply because one would expect a swift
protest in respect of the occupation of areas where the challenge to the
claimant State’s effective control is most direct.

8
Gibraltar: Talks with Spain, May–October , Cmnd , p. . For a Spanish view see
the decision in Exequatur Procedure Goran U, No /; Aranzadi RJ [Referencia de
Jurisprudencia] /; ILDC  (ES ).
 International Law
Moreover, if third States, acting unilaterally or perhaps through a body
such as the United Nations, recognize the title of the State in possession,
that will count towards the building of its title. What is at work here is a
process of ‘historical consolidation’, the term used by the International
Court of Justice in the Anglo-Norwegian Fisheries case to describe the
process by which nineteenth-century Norwegian decrees were effective to
give Norway title to certain coastal areas when its title to those areas was
challenged by the United Kingdom. The Court held that the decrees had
not given rise to any opposition on the part of foreign States and should
therefore ‘reap the benefit of general toleration, the basis of an historical
consolidation which would make it enforceable against all States’. Here
again one sees the underlying concern of international law not to disturb a
peaceful state of affairs. If the international community recognizes a claim
as valid, that will be a powerful argument in favour of its objective validity.
This follows from the realities of the position. If all other States recognize
that the parcel of territory belongs to State A and not to State B and act on
that basis, the abstract question of title is of relatively little importance.
And if the dispute does go for adjudication it is likely that the tribunal will
make a decision that accords with the position that all or most third States
regard as correct.
That last point raises another issue. Questions of territorial title are
decided on balance. International tribunals are concerned with what is
known as ‘relative title’—which of the competing claims is stronger—
rather than some absolute standard of title. This must be so. If two States
litigate over a particular parcel of territory and a third State which has a
claim remains silent, its claim would be extinguished by its acquiescence.
The position is more complex and uncertain if the third State raises
its claim but does not wish, or is not allowed, to join the litigation.
International tribunals have a doctrine of ‘indispensable parties’ and
might refuse to adjudicate in such circumstances, as the International
Court of Justice refused in the East Timor case to rule upon the validity of
a treaty between Australia and Indonesia in the absence of Indonesia,
which had not accepted the ICJ’s jurisdiction.

.  ,

, 
UTI POSSIDETIS
The account so far may all sound rather medieval, as though parcels of
land could be traded, ceded, and conquered, with inhabitants going to bed
in Germany and waking up to find themselves in Poland. There has,
 States 
indeed, been a good deal of such activity over the centuries. But it does
not sit well with the principle of self-determination, enshrined in the
UN Charter and the  Declaration of Principles of International
Law. As Judge Dillard put it in his Separate Opinion in the Western Sahara
case, according to ‘the cardinal restraint which the legal right of self-
determination imposes . . . [i]t is for the people to determine the destiny
of the territory and not the territory the destiny of the people’. Self-
determination now operates as a significant restraint on the right of States
to transfer territory.
It has come to be accepted that parcels of territory should not be trans-
ferred contrary to the wishes of the inhabitants, expressed in exercise of
their right of self-determination. Accordingly, dispositions of territory
are now generally preceded by a plebiscite. Thus, in the case of the
Western Sahara, which had been claimed both by Morocco and by
Mauritania (though Mauritania withdrew its claim in ), the United
Nations has for more than twenty years been trying to organize a referen-
dum on the fate of the territory. It has been unsuccessful so far because of
the refusal of Morocco, which has virtually annexed the territory, to
accept the possibility of an independent Western Sahara, which is the
solution advocated by the Frente Polisario, the Sahrawi independence
movement and Government-in-exile of the Sahrawi Arab Democratic
Republic (SADR). Referenda have been held more successfully in other
places, such as Timor and Gibraltar; and the principle of self-determination
remains very much alive. It is frequently invoked by independence move-
ments, and lies behind the United Kingdom’s political commitments not
to transfer the Falklands/Malvinas to Argentina against the wishes of the
inhabitants. Plebiscites, particularly popular in the s, have also been
held in circumstances in which the question of the unification of smaller
areas with neighbouring States has arisen, for example in the Saarland
(reunited with Germany in ), and in Northern Ireland (which voted
in  to remain part of the United Kingdom).
The principle of self-determination has usually been applied in situ-
ations where the transfer of discrete bundles of territory, such as former
provinces, is in issue. The break-up of the Former Yugoslavia and the sep-
aration of Eritrea from Ethiopia are two examples from the s, both
involving the holding of plebiscites. International law is, however, keen to
preserve international stability. Practice on the question of secession is not
consistent, but broadly speaking while the right of former colonies to
secede from the colonial power is clearly established, there is no clear right
under international law for parts of an independent State to secede. The
one exception lies in the context of the dissolution of former federal
 International Law
States, such as the USSR and Yugoslavia; but in the former case the seces-
sion of the various republics occurred by agreement and through consti-
tutional processes within the USSR, and in the latter case the handling by
the international community of the secession of the various republics
appears to have been largely determined by the need to contain the escal-
ating violence in the Former Yugoslavia.
It is clear that wherever there is a decolonization or secession or
other separation of parts of a State, the separation takes place within the
pre-existing boundaries. This is known as the principle of uti possidetis,
originally deployed when the Latin American colonies achieved their
independence. By becoming independent republics within the former
colonial boundaries they ensured that no pockets of abandoned territory
were left which the European States could colonize anew. There is another
aspect to the doctrine. Respect for these administrative boundaries means
that it is highly unlikely that, for as long as the current legal principles
apply, any new State can be founded except by means of the achievement
of independence of a ‘people’ within the boundaries of an existing admin-
istrative unit or units.

.   

Thus far I have focused upon the territory of States, which is subject to
their sovereignty. (I have treated the matter as if territory is always under
the sovereignty of a single State, but it is possible for sovereignty to be
shared—as, for example, in the Anglo-Egyptian condominium in the
Sudan from  to , and the Anglo-French condominium in the
New Hebrides (now Vanuatu) from  to .) There are, however,

9
See James Crawford, The Creation of States in International Law (nd edn., Oxford:
Oxford University Press, ), Chapter .
10
As I write, the memory of Thomas Baty bears down. Baty was an English international
lawyer who emigrated to Japan and became a legal adviser to the Japanese Ministry of Foreign
Affairs, and published several texts on international law. Baty, a transvestite, also wrote novels
under the name of Irene Clyde and gave a good deal of his money for the promotion of radical
feminist publishing. Narrowly escaping a charge of treason after he remained in Japan during
World War Two, he died in Japan, and is buried in Tokyo. His book International Law in
Twilight (Tokyo: Maruzen Co., ) is one of the most remarkable international law texts ever
published. It calls for ‘the dethronement of the masculine’, the quelling of arrogance by ‘the
according of world-wide acclaim to the Feminine as supereminent’, and ends with the haunt-
ing words, ‘behind the Freedom and behind the Dictators flows serenely the eternal tide of
loveliness’. Baty had an exceptional ability to identify correctly the critical questions of inter-
national law, and to propose answers to them that were completely the opposite of the way in
which international law in fact developed. The sentence to which this note is appended may
suffer the same fate.
 States 
other rights over territory, not amounting to full sovereignty. These are
rights of government and control possessed by one State over territory
that remains technically subject to the sovereignty of another.
International leases are one example. For many years the United
Kingdom exercised effective control over Hong Kong, but not entirely in
the United Kingdom’s capacity as a sovereign State. The island of Hong
Kong was a Crown Colony, ceded to Great Britain by China in the 
Treaty of Nanking, and British Kowloon and Stonecutters Island were
ceded in the Treaty of Peking. They were occupied and controlled by
the United Kingdom à titre de souverain and were territory under British
sovereignty. But the New Territories on the Chinese mainland adjacent to
Hong Kong island were only leased by the United Kingdom from China,
for a period of ninety-nine years under the  Treaty of Peking. They
were occupied and controlled by the United Kingdom in its capacity as an
international lessee, not as sovereign. The site of the United States’ naval
base at Guantanamo Bay is another example, leased from Cuba under
treaties of  and . It appears to have been precisely the fact that the
base was not under US sovereignty, and therefore thought by the US
Government not to be within the geographical scope of the legal protec-
tions afforded by the US Constitution, which made Guantanamo attract-
ive as a place in which to detain without trial people alleged to be
suspected terrorists. As is often the case, invocation of the letter of the Law
and indifference to the practical implication of its principles marched
hand in hand.
Another exceptional case of occupation and control of territory not
being exercised à titre de souverain arises in the context of belligerent occu-
pation; that is, the occupation of enemy territory that occurs during and
after armed conflicts. Thus, while West Germany (as the Federal Republic
of Germany—FRG) and East Germany (as the German Democratic
Republic—GDR) became separate States, Berlin was occupied and con-
trolled for decades after the end of the Second World War by the military
authorities of the victorious Allied States. Technically, Berlin remained
under the sovereignty of the ‘old’ pre-war Germany but under Allied mili-
tary occupation, and was governed by the Allied Kommandatura who had
the right to adopt laws and maintain courts in the City. In , two GDR
citizens, Hans Tiede and Ingrid Ruske, hijacked an aircraft flying from
Gdansk to East Berlin and forced it to land at Tempelhof Airport in West
Berlin, which was under the control of the United States’ Air Force.
Western States had recently ratified several treaties concerning hijack-
ing—the  Tokyo Convention on Offences and Certain Other Acts
Committed on Board Aircraft, the  Hague Convention for the
 International Law
Suppression of Unlawful Seizure of Aircraft, and the  Montreal
Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation. The two latter Conventions obliged their States Parties
either to extradite alleged hijackers or to submit the cases to their own
prosecuting authorities—the so-called aut dedere, aut judicare obligation.
The German policy at the time, however, was to support those fleeing
oppression in the GDR, and neither option fitted comfortably with that
policy. The case was therefore handed over to the Allied Kommandatura
for trial in the US Military Court for Berlin, under Judge Herbert Stern.
The judge, in a remarkable display of judicial independence and integrity,
ruled that the accused were entitled to a jury trial and to procedural safe-
guards under United States’ law, despite vigorous arguments to the con-
trary by counsel for the United States.
The main rules of belligerent occupation were codified in the
Regulations attached to the  Hague Convention Respecting the Laws
and Customs of War on Land. Those rules were designed for situations in
which the belligerents would withdraw to their own territory shortly after
the hostilities ended, so that territory came once more under the control
of the relevant sovereign State. They were not designed for long-term
occupations of the kind that have existed in the Palestinian Territory (by
Israel) and Iraq (by the United States, the United Kingdom, and a hand-
ful of others), where the occupying army functions as a long-term (albeit
temporary) peacetime government. States need to consider the revision of
this area of the law.

.   

The development of faster transport and communications, and of vast
State apparatuses employing a significant proportion of the population,
has made it possible to create State borders on land (and to some extent at
sea) which are reasonably secure. The unusual phenomenon of (usually
communist) States wishing to fence their own citizens in, rather than
merely to keep undesirable aliens out, coupled with an obsession with
national security that has grown steadily in the wake of two world wars and
the attacks of  September , have combined to produce a system of
borders that in some parts of the world take the forms of practically
impenetrable barriers, although in other parts of the world the frontier is

11
Stern published an account of the trial in his book Judgment in Berlin (New York:
Universe Books, ), subsequently made into a film. The judgment in the case is reported at
 FRD .
 States 
marked by no more than an increased risk of treading on a land mine or
of arrest or shooting by any military patrol that might happen to be in
the area.
The borders of a State extend around its land, sea, and air territory. The
legal principles governing the determination of borders are, of course,
those same principles that govern title to territory. The border is where the
limit of one State’s territory meets the territory of another State. As I
mentioned in the previous chapter, in some legal systems a distinct regime
for border areas (i.e., frontiers) is recognized, notably the regime of voisi-
nage. This regime has few hard rules, beyond obligations of co-operation
and consultation between the neighbouring States and communities in
relation to projects that may affect those on the other side of the border.
There may be jointly administered infrastructure facilities, such as water
and power distribution systems, and co-operation between neighbouring
police forces; and there are often many small courtesies and concessions
such as bilingual road signs and expedited passage rights for frontier
workers, shared access to common resources, and the like, sometimes
formalized in treaties and sometimes organized informally. The 
International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families, is one example of a multilateral
attempt to improve the position of this subset of commuters, though a
great deal more has been done within regional economic integration
organizations such as the European Community. The most help has come
from the  Schengen Agreement, which abolished systematic border
controls between the (currently fifteen) participating States, permitting
practically free movement between their respective territories.
The question of rights over airspace under international law first
became an issue with the use of aircraft for military purposes. Balloons
had been used by Austria in an attempt to bomb the defenders ofVenice in
, but it was only at the end of the nineteenth century that reliable
technology was developed. By the time of World War One the legal issue
could no longer be ignored. The French fighter ace, Georges Madon,
was interned in Switzerland in April  having flown into Swiss air-
space in fog. This amounted to an assertion of sovereignty by (neutral)
Switzerland over its airspace; and that position was generally accepted
and embodied in the  Paris Convention on Aerial Navigation. The

12
Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Italy, Greece,
Luxembourg, Netherlands, Norway, Portugal, Spain, and Sweden.
13
Madon shot down  aircraft during the war. He was killed in , aged , when he delib-
erately crashed his malfunctioning plane in order to avoid injury to spectators at an air show.
 International Law
sovereignty of States over the airspace lying vertically above their land and
sea territory is confirmed by the Chicago Convention on International
Civil Aviation . There is no international agreement on the point
where national airspace ends and outer space begins, although a com-
monly used criterion is the lowest point of a satellite orbit, around  to 
miles from the earth. Outer space may not be appropriated by any State;
but there is a growing need for some rules to maintain order there. Quite
apart from the threat of the use of outer space for military purposes
(although the stationing of weapons of mass destruction in outer space or
on the moon or other celestial bodies is forbidden by the  Treaty on
the Principles Governing the Activities of States in the Exploration and
Use of Outer Space, which is regarded as reflecting customary inter-
national law), there are estimated to be around , satellites currently in
orbit, not to mention other bits and pieces that have fallen off rockets; and
that number will doubtless increase as businesses work to bring the bless-
ings of -channel television to the whole globe and governments strug-
gle to ensure that our every move can be tracked. Even though outer space
is an awfully big place, earth orbits are starting to become a little crowded.
States—coastal States—also have sovereignty over an area of sea as an
automatic adjunct of their sovereignty over their land territory. The
twelve-mile territorial sea extends from the coastal State’s baselines (nor-
mally the low-water mark, but straight baselines are notionally drawn
across bays, river-mouths, and some other features), and is under the sov-
ereignty of the coastal State. Boundaries with the territorial seas of neigh-
bouring States are fixed by agreement, failing which a boundary line
equidistant from the nearest points on the baselines of the respective
States is used. The State’s sovereignty over its territorial sea is, however,
subject to a right of innocent passage for ships of all States. That is to say,
they may sail through the territorial sea as long as they do not threaten the
peace, good order, or security of the coastal State. There is no such right of
passage through a State’s land territory or airspace. Landlocked States
must negotiate rights of passage through neighbouring States if they wish
to have access by air or land—by road, rail, river, or canal—to the sea, and
there are many agreements concluded for this purpose. Particularly
notable are the treaties governing navigation on international rivers, such
as the Danube and the Rhine, and more general instruments such as the
 Barcelona Convention and Statute on the Regime of Navigable
Waterways of International Concern. There are many international agree-
ments concerning road, rail, canal, and multimodal transport; and sur-
prisingly little written (at least by public international lawyers) on this
aspect of international law. Air transport, by contrast, has a very highly
 States 
developed system of international agreements that has been extensively
analysed. The framework for these agreements is provided by the 
Chicago Convention on International Civil Aviation, and rights for com-
mercial airlines to overfly and land in other States are regulated by a
network of bilateral ‘Bermuda agreements’, as they are known.
Coastal States also have more limited rights over other maritime zones,
notably the continental shelf and the -mile exclusive economic zone
(EEZ), in which the coastal State has exclusive rights over marine
resources (such as fish, oil, gas, and gravel) and their exploration and
exploitation, and jurisdiction in respect of marine pollution and marine
scientific research. These rights do not, however, amount to sovereignty,
and the zones in question are not part of the territory of the State. Beyond
the -mile EEZs of States lie the high seas, which are broadly speaking
free for use by all States in the same way that outer space is free for use
by all.

.  

I have been talking about the territory of the State. But power is not geo-
graphically limited; and there is more to a State than its territory. It is not,
however, easy to say exactly what more there is to a State than its territory.
One of the most frequently quoted definitions of a State is that found in
the  Montevideo Convention on Rights and Duties of States, one
of a remarkable series of texts emanating from the Pan American Union,
predecessor of the Organization of American States. Article  of that
Convention stipulates that:
The state as a person of international law should possess the following qualifica-
tions: (a) a permanent population; (b) a defined territory; (c) government; and (d)
capacity to enter into relations with the other states.
That definition was a child of its time, and reflects none of the preoccupa-
tion with self-determination, democracy, and legitimacy which charac-
terized discussions of Statehood later in the twentieth century. But it is
a good place to start because while its four criteria have been added to,
no-one has suggested that any of them is dispensable.

.  

The first requirement refers to the population of a State. Unless there is
someone to be governed, there is no State. It does not matter much how
many people there are. The populations of current Member States of the
 International Law
United Nations range from around . billion (China) to less than ,
(Tuvalu)—the Holy See/Vatican City (population ) is a ‘Non-
member State maintaining a Permanent observer mission at UN
Headquarters’. There are more people reported missing each week in the
United States than the entire population of Tuvalu; but both are sovereign
States, with the same number of votes in the United Nations. There may
be some point at which the international community would draw the line.
For example, if the Pitcairn Islands (population, ) were to become
independent and seek admission to the United Nations, States might
re-examine the relationship between the principle of sovereign equality
and common sense. The population must be reasonably stable. They may
wander around within the country, like the nomadic people of the Western
Sahara, but they must have some degree of social cohesion; a transient,
dissociated population (such as the groups of fisherfolk who reside on
certain otherwise unoccupied islands on a seasonal basis) is not enough.
Most of those who live in a State will be its citizens, its nationals, though
there will almost certainly also be nationals of other States, and perhaps
also people who have no nationality. The relationship of nationality is
important in international law, particularly (as was seen in Chapter ) in
the context of diplomatic protection and, as I shall explain, of jurisdiction.
It is therefore worth exploring the concept in a little more detail.

. 
The nationality of persons, ships and aircraft is determined not by inter-
national law but by national law. As the International Court observed in
the Nottebohm case, where the validity of an unusually swift acquisition of
Liechtenstein nationality was in question, it is in principle for each State
to decide who are its own nationals. In the case of individuals, most States
ascribe nationality to those who are born within their territory (the jus
soli), or who have one or both parents with the nationality of the State (the
jus sanguinis). Furthermore, it is generally possible to acquire nationality
by naturalization. For jurisdictional purposes this ascription of national-
ity to individuals is likely to be determinative, unless perhaps a State
attempts to impose its nationality upon individuals who do not want it and
have no real connection with the State. The nationality of corporations is
usually determined, as I noted in Chapter , by the place of incorporation
or of the seat of the management, or some combination of the two.
In the context of the nationality of ships, Article  of the  United
Nations Convention on the Law of the Sea requires that there be a
‘genuine link’ between the ship and its flag State. In practice, despite an
 States 
unsuccessful attempt in the s to secure international agreement on
the implementation of this principle, many ‘flag of convenience’ ships
sail (often for tax reasons) under the flags of States with which they have
no real connection. This practice reinforces the view that each State is free
to determine the conditions for the grant of its nationality. Nevertheless,
in circumstances where access to resources (such as quotas of fish catches)
or other privileges are granted on the basis of the nationality of ships
tribunals may in future revisit this question and, as the International
Court did in the Nottebohm case, say that the grant of nationality by a State
is not necessarily determinative in every context. It would strain the
concept of nationality if a shipowner, denied benefits such as access to
fish stocks under one flag, could circumvent the restrictions simply by
re-flagging his vessel in another State.

. 
Although Article  of the International Covenant on Civil and Political
Rights declares that ‘every child has the right to acquire a nationality’,
some unfortunate people have no nationality. They may have been born in
a State that refuses to give its nationality to some people born within its
territory—for example, the children of refugees— or a woman may have
lost her nationality on marrying a foreigner, and then lost his nationality
upon divorce. Such Stateless people are at a grave disadvantage. They
have no national State which they are entitled to enter and reside in if no
other State will accept them, and they may be denied many of the rights of
citizens, such as the right to work or own land or receive welfare benefits.
Two Conventions have sought to ameliorate their position. One seeks to
reduce the incidence of Statelessness by guaranteeing everyone born in a
territory the right to the nationality of that State if they would otherwise
be Stateless, and by prohibiting the withdrawal of nationality on a change
of status, such as divorce, if that would leave the person Stateless. States
Parties to the other Convention guarantee certain rights, such as the right
to some basic welfare provision, and the same right to work as is ‘accorded
to aliens generally in the same circumstances’ to Stateless persons.

14
See the  UN Convention on Conditions for Registration of Ships,  Law of the Sea
Bulletin  (). The Convention is not in force.
15
But note that the categories of Stateless persons and of refugees are not co-extensive.
16
Convention on the Reduction of Statelessness, ,  UNTS .
17
Convention Relating to the Status of Stateless Persons, .
 International Law

.  

I have already discussed the territory of a State, and there is little more
to be said. As in the case of populations, there are wide differences of
scale between States. Russia has around  million square kilometres of
territory, Monaco about two square kilometres—much less than the area
lost annually to coastal erosion in Louisiana. And, as David Harris
remarked, the Holy See ‘whatever domain it may have elsewhere, has less
than  acres on earth’. But, as they say, size does not matter: all count
as sovereign States.
The reference to ‘defined territory’ signals a requirement that the
State should have reasonably determinate borders. During a civil war, for
example, a rebel government may manage to establish effective control
over part of the State and to command the obedience of a part of the
population; but if the conflict continues and the borders of the area under
rebel control ebb and flow, there will not be a sufficiently defined territory
to support a claim to Statehood. It is not necessary that the borders be
wholly determined: India and Israel are two of several States that achieved
Statehood when their precise boundaries remained in dispute.

.  

The third Montevideo Convention criterion of Statehood is the existence
of a government. This means an effective government in control of
the territory and population that form the basis of the State. In order to
be a government some degree of constitutional order is necessary. In ,
Justice Pound asked ‘As a juristic conception what is Soviet Russia? A band
of robbers or a government?’ Given those alternatives, it would be
relatively easy to place putative governments on one or other side of
the line. The surprising thing is that this Montevideo criterion is not
more discriminating and demanding. Why not require that the govern-
ment be representative or democratic, for example? While the natural
reluctance of government representatives at international conferences to
spell out the criteria for their own legitimacy has delayed the articulation
of a clear and generally accepted statement along these lines, the fact is

18
David Harris, Cases and Materials on International Law (th edn., London: Sweet &
Maxwell, ), p. .
19
Salimoff & Co. v Standard Oil Co. of New York,  NY  (). He answered, ‘We all
know that it is a government. The State Department knows it, the courts, the nations and the
man on the street.’
 States 
that there is a trend towards requiring a minimum standard of legitimacy
and constitutionality from a government if the entity that it governs is to
be accepted as a State. There is more to be said about this, but it is an aspect
of a broader question, not confined to the nature of the government; and
so I shall postpone discussion of it until I have dealt with the fourth and
last of the ‘Montevideo’ criteria.

. :  

     
  
The fourth criterion, ‘the capacity to enter into relations with the other
states’, is paradoxical. It is set out as a condition of Statehood, but it might
more properly be regarded as a consequence of Statehood. Clearly, an
entity will not be able to enter into State-to-State relations unless it is a
State. The paradox may seem to be resolved on one level by referring to
the notion of recognition. An entity may have all of the attributes of
Statehood, but if other States refuse to recognize it as a State and to deal
with it as such, it will in practice not be possible for it to enter into relations
with other States. But that throws us into a circular argument: how does
one State know if another entity is a State and to be dealt with as such?
The position makes more sense when one views this criterion as
emphasizing the question of capacity. The very next Article in the
Convention stipulates that ‘the federal state shall constitute a sole person
in the eyes of international law’. That gives a clue to its meaning. Component
units of federal States, such as Texas, Ontario, and New South Wales, have
permanent populations, defined territory, and effective governments, but
they are not sovereign States in international law because they lack the
capacity to act on the international plane. The conduct of foreign relations
is a function of the federal government, not of provincial or state govern-
ments. If the Government of Scotland or of Texas were to violate some
rule of international law, for example by imposing laws requiring unlawful
discrimination, it would be the United Kingdom or the United States that
would be responsible, and the matter would be handled through the
British Government in Westminster or the federal Government in
Washington DC. Accordingly, under the Montevideo Convention,
although a political subdivision of a State may meet the first three criteria,
it will not meet the fourth. If a subdivision were entitled to conduct

20
Often misquoted as ‘the capacity to enter into relations with other states’, omitting the
definite article, which appears in the definitive version of the text. See  LNTS .
 International Law
foreign relations, it would be eligible to be a distinct State as a matter of
international law, even if as a matter of constitutional law it was linked to,
and in some respects subordinate to, another government or governments.
Thus, Texas is not a sovereign State as a matter of international law, but
the constituent States of the European Union and of the Commonwealth
of Independent States are. The fact that some provincial and other non-
State units do in fact maintain international dealings does not invalidate
this point. The Government of Quebec, for example, maintains overseas
delegations and has extensive dealings with foreign governments; but it is
not treated by them as a sovereign State.
Occasionally this question of independence arises in respect of entities
that do not purport to be parts of other States. The classic example is that
of the Bantustans that formerly existed in South Africa, such as Transkei
and Ciskei. The apartheid regime in South Africa declared these enclaves
within South African territory to be ‘independent’ States, so as to push a
large part of its black population beyond its legal borders. No other State
in the world recognized them as States, because they were patently not
independent. They were puppets of the South African Government.
In the case of the South African Bantustans that was not a difficult
conclusion to reach. But how far does it go? What, for instance, of the
provisions in the Compact of Free Agreement between the Marshall
Islands and Micronesia and the United States which give the Government
of the United States ‘full authority and responsibility for security and
defense matters in or relating to the Marshall Islands and the Federated
States of Micronesia’ and stipulate that in recognition of that authority
and responsibility ‘the Governments of the Marshall Islands and the
Federated States of Micronesia shall consult, in the conduct of their
foreign affairs, with the Government of the United States’? Can these
States, which are Member States of the United Nations, properly be
regarded as independent of the United States? Can the Marshall Islands,
with its population of about , souls—under half the size of
Oxford—maintain an effective independent foreign policy, operating in
the United Nations and its agencies in New York, Geneva, and elsewhere?
If so (and some awkward questions would arise in the General Assembly if
the answer were, no), what does that say about the requirement of inde-
pendence? It seems that the notion of independence is a highly legalistic

21
Although it was from  to , prior to joining the United States of America. The
Legation of the Republic of Texas was in St James’s Street, and is now occupied by the wine
merchants, Berry Brothers and Rudd.
22
See the Reference Re Secession of Quebec ()  DLR (th) ;  ILR .
 States 
one, in contrast to the bold approach of the majority judgment (adopted
by eight votes to seven) rendered by in the Permanent Court of International
Justice when it was called upon to decide whether the  Protocol
providing for an Austro-German customs union violated the stipulation
in the  Treaty of Saint-Germain that ‘the independence of Austria is
inalienable’. The Court distinguished between the formal preservation of
Austrian independence and the ‘reality’ of the position, and held that the
customs union was calculated to threaten Austria’s economic independ-
ence. The minority, in contrast, considered that the Protocol merely called
for an assimilation of the tariff and economic policies of the two States,
and for each State to see that the interests of the other were not violated by
the conclusion of any treaty with a third State. The contrast between the
two approaches is striking.
Why has the international community apparently preferred the formal
to the ‘realist’ approach to the question of independence? The main reason
is historical. The modern law on Statehood was forged in the context of two
great political shifts: the decolonization movement, and the break up of the
Soviet empire, when more importance was attached to the right to inde-
pendence than to the demand for internationally effective governments.
These developments have modified the traditional criteria of Statehood.

. 
State practice has also developed so as to indicate that in addition to having
a stable population, defined territory, effective government, and the cap-
acity to engage independently in international relations, a candidate for
Statehood is expected to satisfy an additional requirement of ‘legitimacy’.
The main implication of the requirement of legitimacy is that the entity
must have emerged towards Statehood in a manner that is consistent with
the principle of self-determination. That explains why the Unilateral
Declaration of Independence by the all-white minority Smith regime in
the British colony of Southern Rhodesia in  was not regarded as
leading to the creation of a new State, even though it fulfilled all of
the Montevideo criteria. Only when adequate representation of the
black majority population was secured did the country move to independ-
ent Statehood, as Zimbabwe, in . Conversely, it is the inability of

23
PCIJ, Ser. A/B, No. , at pp. –, , .
24
It might be said that it lacked independence, because as a matter of United Kingdom
law it remained a (rebellious) colony. But the declaration of independence would have cured
that, because there is no requirement that a new State should have come into existence in
 International Law
international law to deny the right of self-determination to even the
smallest colonies that seek it which explains the number of micro-States in
the United Nations. While self-determination is an admirable principle
on which to base the government of a territory, it is less clear that it is a
good basis on which to structure international political and economic
relations. The steady growth of regional political and economic groupings
and organizations reflects the pull of reality: many micro-States lack the
resources necessary to function both independently and effectively on the
international stage.
It is sometimes suggested that there is a second aspect of legitimacy, a
‘right to democracy’ and that an aspirant to Statehood will not be
regarded as such if its government, no matter how ‘effective’ in its control
of territory, is hopelessly undemocratic. Many jurists are not convinced
that there is, or perhaps even that there should be, any such right; and
rather more take the view that even if there were, it should not operate as a
condition of Statehood. That is not to say that the appraisal of the nature
of the government is of no significance. It will certainly affect the attitude
of other States towards it, and significantly affect its chances of survival.
This brings me to the question of recognition.

. :  

  
There used to be a great doctrinal debate over the effect of recognition. If
an entity fulfilled all of the criteria of Statehood but no-one recognized it
as a State, would it be a State? The Montevideo Convention itself answered
the question clearly:
Article 
The political existence of the state is independent of recognition by the other
states. Even before recognition the state has the right to defend its integrity and
independence, to provide for its conservation and prosperity, and consequently to
organize itself as it sees fit, to legislate upon its interests, administer its services,
and to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the
rights of other states according to international law.
...

accordance with constitutional procedures which formerly applied to the territory. If there
were, international law would be in a state of permanent denial regarding revolutionary
change.
25
See, e.g., ‘Promotion of the right to democracy’, Commission on Human Rights Resolution
/.
 States 
Article 
The recognition of a state merely signifies that the state which recognizes it
accepts the personality of the other with all the rights and duties determined by
international law. Recognition is unconditional and irrevocable.
In other words, Statehood was a ‘fact’; and the act of recognition simply
recognized the fact of the existence of a State.
But others took a different view. Some argued that recognition was a
further criterion of Statehood, or implicit in the requirement of the cap-
acity to enter into relations with other States. Others argued that the
existence of the fact of Statehood had to be determined by someone, and
that only States could make that determination, so that the ‘fact’ of a
State’s existence was established only when it was recognized. However it
was explained, the point was that recognition was constitutive of Statehood,
not merely declaratory of it.
It is now generally accepted that the declaratory theory is correct—that
is, that it is the most accurate description of what goes on in State practice in
relation to the recognition of States. The question was faced directly by the
Arbitration Commission established in  under the chairmanship of
Robert Badinter, a distinguished lawyer and former French Justice
Minister, to advise the European Communities on the grant of recognition
to the constituent republics of the former Yugoslavia as that federation
broke up. In a faintly medieval process, questions were posed to the Badinter
Commission by Lord Carrington, chairman of the European conference on
Yugoslavia. In the course of its response to one question the Commission
stated unequivocally that ‘the existence or disappearance of the State is a
question of fact; . . . the effects of recognition by other States are purely
declaratory’. It went on to describe the conditions of Statehood and the
relevance of the internal governmental structure. It said that it considered:
(b) that the State is commonly defined as a community which consists of a ter-
ritory and a population subject to an organized political authority; that
such a State is characterized by sovereignty;
(c) that, for the purpose of applying these criteria, the form of internal political
organization and the constitutional provisions are mere facts, although it is
necessary to take them into consideration in order to determine the
Government’s sway over the population and the territory.
On this view the crucial question is the four traditional criteria (territory,
population, government, sovereignty) are fulfilled. The question of the

26 27
Opinion No. ,  ILR . Opinion No. ,  ILR .
 International Law
internal structure and legitimacy of the government is relevant only to the
question whether the nascent State is likely to last. But this injects one
crucial element into the calculation. It is not enough for an entity to dis-
play the criteria of Statehood at the instant of its birth: it must be likely to
survive.
A second element was reflected in the European Communities’ 
Declaration on the Guidelines for the Recognition of New States in Eastern
Europe and the Soviet Union. The operative part of the Declaration merits
quotation in full:
The Community and its Member States confirm their attachment to the prin-
ciples of the Helsinki Final Act and the Charter of Paris, in particular the prin-
ciple of self-determination. They affirm their readiness to recognize, subject to
the normal standards of international practice and the political realities in each
case, those new States which, following the historic changes in the region, have
constituted themselves on a democratic basis, have accepted the appropriate inter-
national obligations and have committed themselves in good faith to a peaceful
process and to negotiations.
Therefore, they adopt a common position on the process of recognition of
these new States, which requires:
— respect for the provisions of the Charter of the United Nations and the
commitments subscribed to in the Final Act of Helsinki and in the Charter of
Paris, especially with regard to the rule of law, democracy and human rights
— guarantees for the rights of ethnic and national groups and minorities in
accordance with the commitments subscribed to in the framework of the
CSCE
— respect for the inviolability of all frontiers which can only be changed by
peaceful means and by common agreement
— acceptance of all relevant commitments with regard to disarmament and
nuclear non-proliferation as well as to security and regional stability
— commitment to settle by agreement, including where appropriate by
recourse to arbitration, all questions concerning State succession and regional
disputes.

28
The  Helsinki Final Act of the Conference on Co-operation and Security in Europe
set out the basic principles for inter-State relations in Europe, then still locked in the Cold War.
See ILM  (), and < http://www.osce.org/item/.html >.
29
The Charter of Paris for a New Europe, . See < http://www.osce.org/documents/
mcs///_en.pdf >. This great clarion call declares that the signatory States ‘under-
take to build, consolidate and strengthen democracy as the only system of government of our
nations’ and affirms the central importance of human rights and economic liberty. Largely
ignored at the time of its adoption, future generations may see in it the clearest affirmation of
the values of the North American-European community (‘from Vancouver to Vladivostok’) in
the late twentieth century.
30
The Conference on Co-operation and Security in Europe, now the Organization for
Co-operation and Security in Europe. < http://www.osce.org/ >.
 States 
The Community and its Member States will not recognize entities which are
the result of aggression. They would take account of the effects of recognition on
neighbouring States.
The commitment to these principles opens the way to recognition by the
Community and its Member States and to the establishment of diplomatic rela-
tions. It could be laid down in agreements.
The Declaration is an interesting phenomenon. Recognition, the
Badinter Commission had asserted, is declaratory; but still, someone
must do the recognizing. The law lays down the criteria, but in this
Declaration the States assert that their common position on recognition
‘requires’ indications concerning the good behaviour of aspirant States;
and in doing so they impliedly affirm that recognition is a matter of
discretion, something that they are entitled to withhold. Then the third
step: they identify the factors relevant to the exercise of that discretion—
though not committing themselves to anything other than the ‘opening of
the way’ to recognition if the conditions are satisfied.
What is one to make of all this? Legally, the position may appear to be
confused and unclear. The reality is more straightforward.
Recognition is undoubtedly a political instrument. When would-be
States emerge in a non-consensual way from the territory of existing
States, whether it be by attempted secession or by the break up of the
former State, there is always a time during which it is unclear whether the
attempt to establish the new State will succeed. The existing State will be
resisting the attempted breakaway, often by the use of armed force or
attempts to isolate the new entity politically and economically. During this
period the attitude of third States is enormously important. If, say, the EU
or the USA or Russia announces that it recognizes the new entity as a State
and will give it economic or other assistance, it is much more likely to
survive than if they all say that they will have nothing to do with it. That is
one practical effect of recognition. A second practical effect is that recog-
nition creates the possibility of formal diplomatic relations. It announces
that the recognizing States are ready to deal on a State-to-State basis with
the entity, exchanging diplomatic representatives, accepting it as a party
to multilateral treaties, and so on. When the new State is widely recog-
nized, it will no doubt apply for membership of the United Nations. The
decision of the General Assembly, acting on the recommendation of
the Security Council, on the admission of the entity as a Member State
of the United Nations is in practice the definitive seal on the Statehood of
the new State.
31
 EJIL  ().
 International Law
Recognition is, therefore, an important step. But timing is everything.
Premature recognition, before the entity truly fulfils the criteria of
Statehood, is not only legally incorrect, it amounts to intervention in the
internal affairs of the State from which the new entity is attempting to
break away. Among other legal effects, recognition of a seceding entity
would convert a rebellion or civil war, which the former sovereign has
every right to attempt to suppress, into an international conflict, in which
third States should not intervene and in which the former sovereign would
be bound by the UN Charter prohibitions on the threat or use of force.
This was the difficulty that faced the European States as they watched the
break up of the Former Yugoslavia. Some thought the recognition of
Croatia and Slovenia premature, although most thought that the European
States were simply recognizing the reality of the situation.
Recognition may, on the other hand, be unduly delayed even where
the entity plainly meets the factual criteria for Statehood. Israel was not
universally recognized as a State even after its admission to the United
Nations in . Denial of recognition might amount to the impeding of
the right of a people to self-determination. There can be no real doubt,
however, that an entity which meets the factual criteria of Statehood—
population, territory, government, and independence—is entitled to the
basic rights of a State, such as the right not to be attacked, and to be free
from foreign intervention. Other rights that flow from participation in
treaty regimes will, of course, be denied to it until such time as it is
permitted to become a party to the relevant treaties. It will, therefore, have
a diminished and lonely life: but not one entirely without legal rights. In
short, one might say that recognition is declaratory of Statehood but
constitutive of the possibility of participating fully in the international
community.
Entities that meet the factual criteria of Statehood may endure for years
without recognition. It seems, for example, that Somaliland is in this pos-
ition; so, too, is Palestine. The reason is often that it is thought that recog-
nition of the entity would not assist a durable solution to the problems of
the area.
There have been many self-proclaimed States that have failed to meet
even the basic criteria for Statehood. The names, mostly forgotten, given
to these fantasies range from Abaco, an island in the eastern Bahamas
where one Michael Oliver attempted to establish a libertarian State in
, to Zoutpansberg in what is now Mozambique, where João Albasini
tried to establish a nation in the s. If suitable land could not be found,
the more determined nation-founders have sometimes built their own.
Michael Oliver (the same) tried to establish the State of Minerva as a tax
 States 
haven on a platform built on a submerged coral reef in the South Pacific in
; but he suffered a crushing defeat, reportedly at the hands of a Tongan
prison work detail that had been sent out to pull down the Minervan flag.
There are also converse cases: entities that objectively appear to meet all
the criteria of Statehood, but which seem not to wish to be a State. Taiwan
is the classic example. Taiwan is the last stronghold of the nationalist
Government of the Republic of China, pushed back during the
Communist revolution. But the Taiwan Government regarded itself as the
legitimate government of the whole of China and, indeed, occupied
China’s seat at the United Nations until , when it was expelled and
replaced by the Government of the People’s Republic of China. Since
then the question of independence or reunification with China has been
controversial in Taiwan, which has not unequivocally asserted its separ-
ation from China. The People’s Republic of China strongly opposes inde-
pendence for what it regards as Taiwan Province, and third States have
sought to avoid aggravating the dispute. Nonetheless, Taiwan has dealings
with foreign States and international organizations very much like those
of an independent State, and is represented abroad by (non-diplomatic
missions). For instance, in the United States the CIA website—which
places Taiwan out of order in its otherwise-alphabetical list of States,
between Zimbabwe and the European Union—records that ‘unofficial
commercial and cultural relations with the people on Taiwan are main-
tained through an unofficial instrumentality—the American Institute in
Taiwan (AIT)—which has offices in the US and Taiwan’.
The road to Statehood is a one-way street. Once an entity has become a
State it will remain one, no matter how useless and ineffectual its govern-
ment might become. In an article in  Thomas Baty asked, ‘Can an
anarchy be a State?’, and the answer under current doctrine is, yes.
Somalia, despite the anarchic conditions that obtain there and the lack of
any real government, remains a State. While this position is doctrinally
clear, it has been increasingly questioned in recent years. The idea of the
‘failed State’ has emerged, with the suggestion that if a State does collapse
someone might have to step in to reconstitute it. Not surprisingly, there
is concern that the label (which begs a great many questions as to what
should count as a definitively ‘failed State’, as opposed to a State in diffi-
culties) might easily become an excuse for foreign intervention and neo-
colonialism. It is difficult to see that the notion of a failed State does not
imply the permissibility of some sort of intervention, of a kind that would

32
Thomas Baty (see fn ), ‘Can an Anarchy be a State?’,  AJIL  (). True to form,
Baty thought that the answer should be, no.
 International Law
be unlawful under the established principles of international law. On the
other hand, the absence of any such right may cause serious difficulties.
For example, the prohibition on the pursuit of pirates from the high seas
into a State’s territorial sea, or of criminals across a land frontier, derives
from the duty not to infringe the sovereignty of the State into which they
flee. The proper course is to allow that State to arrest them, or to seek its
consent to pursuit. But if there is no functioning government in the State,
neither possibility is available. Should the principles of State sovereignty
and non-intervention stand, or should they be put aside to allow effective
law enforcement? It is a difficult and troubling question; but one which
has to be faced.
Any ‘failure’ in such cases would in any event almost certainly be the
failure of the government rather than of the State. Governments come and
go; but even if they come to power by unconstitutional means, such as a
coup, the personality of the State is wholly unaffected. Other States have
to decide whether they will have normal government-to-government
dealings with the new regime; and this gives rise to questions of recogni-
tion similar to those concerning the recognition of States. Here, the
element of political discretion is particularly pronounced, but the under-
lying approach in most cases is based on the principle of effectiveness. If the
government is in effective control of the territory and of the machinery
of the State, and is governing with the consent of (most of) the people, and
appears willing to comply with its international obligations, it will gener-
ally be recognized—although many, perhaps most, States do not now make
formal declarations of recognition of a foreign regime but simply decide on
the nature of dealings that they are prepared to have with it. There may be
a wide range of unofficial dealings, outside the normal channels of formal
international diplomacy, even with an ‘unrecognized’ regime.

.   

  
I should say a little about the handling of questions of Statehood and recog-
nition in domestic legal systems, because it is different from the approach
adopted in international law and the differences cast an interesting light
on the role of the courts in the conduct of foreign affairs. Each State will
regulate these questions under its own national law, but the position in
English law is broadly typical of that adopted in many States.
Recognition of a State is an act of great political significance. Municipal
courts tend to avoid taking a position on the question, preferring to follow
the Executive. If the Executive recognizes it, it is a State: if the Executive
 States 
does not recognize it, it does not exist. Thus, the English courts refused to
accept that the German Democratic Republic (GDR) was a State in ,
or that the South African Bantustan of Ciskei was a State in , because
the Government provided Executive Certificates to the courts indicating
that it had not recognized the entities. The so-called State could therefore
not be a plaintiff, defendant, or otherwise a party to proceedings in English
courts. Furthermore, the acts of the government of the purported State
were in principle regarded as a nullity, because there was no State of which
it could be the government. But the courts in those cases avoided the
creating of legal blank spaces on the world map by treating the acts of the
governments concerned as acts of the Soviet Union and of South Africa
respectively. The Carl Zeiss decision on the GDR has been criticized as an
artificial device to avoid the undesirable consequences of non-recognition;
but that is not a fair criticism. Rightly or wrongly, it was generally perceived
in the United Kingdom that the Government of the GDR was in fact
directed by the authorities in Moscow, and that the authorities in Ciskei
were in fact the puppets of Pretoria. The courts simply applied what
appeared to many people at the time to be a common-sense solution, dis-
turbing as that might appear to legal formalists.
Pragmatism has gone further in some circumstances. The one substan-
tive section of the Foreign Corporations Act  stipulates that a cor-
poration having corporate status under the laws of a territory that is not a
recognized State is nonetheless to be treated as a legal person if those laws
are ‘applied by a settled court system in that territory’. Had the Act been
in force, corporations established under the laws of the GDR in the s,
or of Ciskei in the s, would have been recognized as corporations with
personality, capable of suing and being sued in English courts. The Act
follows the approach of a dictum of Lord Denning in Hesperides Hotels v
Aegean Holidays Ltd, itself reflecting a much older line of authority in
United States’ courts suggesting that routine administrative acts of
unrecognized entities should be given legal effect. That policy springs
from the laudable belief that individuals should not suffer unnecessarily as
a result of political upheavals. If effect is denied to, say, a divorce granted
under laws enacted by an unrecognized government, people who thought
themselves legally divorced under the laws of the country where they may
have spent their whole lives could find themselves not divorced; and if

33
Carl-Zeiss-Stiftung v Rayner & Keeler Ltd [] AC .
34
Gur Corp v Trust Bank of Africa (Government of the Republic of Ciskei, third party) []
 All ER .
35
[] QB .
 International Law
they remarry, they might commit bigamy. Better to allow such routine
laws to be given effect, even if more ‘political’ laws, such as expropriatory
decrees, are regarded as nullities.
The problems that arise from denying effect to the laws of an unrecog-
nized State can arise also if laws are enacted or some other action is taken
by an unrecognized government within a recognized State. This was the
problem in the Republic of Somalia case. The plaintiffs claimed to be the
Government of Somalia and entitled to dispose of funds in England
belonging to the Republic of Somalia. Prior to  this question would
have been answered in English Law by asking whether the regime had
been recognized by the British Government as the government of
Somalia. But in  the United Kingdom announced that it would no
longer formally recognize governments, largely because formal recogni-
tion of regimes that had come to power unconstitutionally had sometimes
been misinterpreted as a sign of approval by the United Kingdom, even
though British doctrine regarded recognition as a matter of facing facts—
if someone could give a convincing answer to the question, ‘who’s in
charge here?’ the United Kingdom would recognize them as the govern-
ment, at least if they seemed likely to remain in charge for a while, whether
or not it approved of them. Under the new policy, which conforms with
that adopted by most other States, the United Kingdom no longer formally
recognizes the regime but simply decides what dealings, if any, it will have
with the regime. The United Kingdom might, for example, refuse to have
diplomatic relations with the regime, and oppose its participation in inter-
national conferences, but ask it for information or assurances concerning
the safety of British citizens in the country. If a question arose as to
whether the regime was in law the government of the State, it would be left
to the courts to decide. The Republic of Somalia case sets out the approach
that a court will follow in taking that decision. If the putative government
is constitutionally appointed, there is no problem. If it is not, the court
will look to ‘the degree, nature and stability of administrative control’ that
the government exercises over the territory, the nature of any dealings that

36
See Adams v Adams [] p. .
37
Republic of Somalia v Woodhouse Drake & Carey Suisse SA [] QB ,  ILR .
38
Hansard, H L Debates, vol. , cols, –,  April ;  BYIL  ().
39
There was a difference between de facto and de jure recognition of States and govern-
ments. As Brierly put it, ‘Recognition de facto is provisional; it means that the recognizing
government offers for the time being to enter into relations, yet ordinarily without cordiality,
and without the usual courtesies of diplomacy.’ : The Law of Nations (th edn., Oxford: Oxford
University Press, ), p. . De jure recognition signalled a belief that the State or govern-
ment was ‘lawfully established’, and a proper member of international society, with whom cor-
dial relations would not be inappropriate.
 States 
the British Government has with it, and in marginal cases the extent of
international recognition that the government has been given. The views
of the Executive are no longer determinative on these questions, although
they will naturally be given considerable weight.

.  

When new States emerge (whether following decolonization or the break
up of another State or in some other way, such as by the fusion of two
States, or the transfer of part of one State into another) they come with a
history: and there is an important question as to how much of that history
binds them. Are they bound by treaties entered into in respect of their ter-
ritory by the former sovereign? Do they have rights under such treaties?
Are they entitled to a share of the wealth (and the debts) and the archives,
of the former sovereign? These are the questions of State succession.
They have acquired great importance in the context of the break-up of the
former Soviet Union, Yugoslavia, and Czechoslovakia. The disposition
of the Soviet warships and missiles, for instance, is one of the practical
questions that has had to be addressed.
The law in this area is complex, and the rules vary according to the
manner in which the new State emerges: States formed by absorption or
merger of two previous States are not in the same position as States formed
by the dismemberment of one predecessor State. There is a multilateral
treaty dealing with some aspects of the question, but much of the law
remains unclear and controversial. Speaking broadly, it can be said that
there is wide (but by no means unanimous) approval for the principle that
successor States are not automatically bound by the treaties of their prede-
cessors, except in the case of provisions defining borders, and perhaps
other provisions that apply to specific locations so as to create, as it were,
rights and duties in rem. The broad principle of succession to public
property and debts is generally admitted, but questions of the extent to
which that principle applies, the way that shares of debts and property
should be calculated, and other such crucial matters, remain controversial.
This, then, is the State: a synthesis of people, territory, and government,
which establishes a distinct public order in the exercise of its sovereign
right to self-determination. In the next chapter I shall explain how that
public order is put in place.

40
The Vienna Convention on Succession of States in Respect of Treaties, .
 

Inside the State

.  

The essence of a State lies in the entitlement of the handful of people who
constitute the government, and the legislature (if that is not controlled by
the government), of the State to force everyone within the State to do what
the government want them to do. All sorts of groups and entities can tell
us what to do in particular contexts. I could be excommunicated, dismissed
by my employer, or refused treatment by my dentist. But only ‘the State’
can do all of this and in addition do anything else that it wishes, backing up
its desires in relation to my behaviour by the threat that if I do not comply
the police, court bailiffs, and if I am exceptionally resistant the armed
forces, will coerce me into compliance—and, moreover, be regarded as
acting legitimately when doing so. ‘The State’ shapes all aspects of our lives
by what it compels us to do and what it leaves us free to choose. It may
decide whether to adopt one State religion or to allow many or none; whether
to allow private ownership and private enterprise or to place all economic
activity directly in the hands of the State. It may mandate equality of
treatment for the sexes or forbid it by imposing discriminatory laws. The
choices are infinite, and the societies that governments construct differ
subtly but importantly.
In a libertarian State the government can enforce its chosen constraints
on the lives of individuals largely by action within its own borders; but
only largely. If the State wishes to maintain active competition within the
economy it may wish to ban cartel agreements which fix prices or divide
up markets. But if the officers of companies based in the State can travel
to a neighbouring State and incorporate a business and make such an
agreement, a strictly territorial approach to regulation of the economy will
not be effective. The government will need to regulate extra-territorial
activity. But whose extra-territorial activity? If I am a citizen of the State,
the government may decide that it is appropriate that I should obey the
State’s laws wherever I might be. But is that appropriate? There are good
reasons why I should not participate in an extra-territorial cartel that aims
to carve up the national market, and why I should not commit murder or
 Inside the State 
marry bigamously abroad, but is there any reason why I should not buy
cannabis, or guns, or disrespectful cartoons of the Prime Minister or the
Prophet, if it is legal to do those things in the State where I happen to be?
This is the question of the proper reach of a State’s jurisdiction.
Jurisdiction is the right to prescribe and enforce rules against others.
A State has ‘prescriptive’ or ‘legislative’ jurisdiction, which it exercises
by enacting laws. Some laws establish rights (such as the right to welfare
support) or duties (such as the duties to pay taxes, and not to steal, and not
to operate cartels); others, such as the law of contract or family law, estab-
lish the conditions upon which individuals may themselves create certain
rights and duties; yet other laws determine the status of persons or things
(such as minors, ‘goodwill’, and intellectual property). Together the laws
define, and in large measure constitute, the nature of a particular society.
States also have ‘enforcement jurisdiction’, that is, the right to enforce
their laws by deploying the police, courts, bailiffs, and other agencies in
order to compel compliance with the law and punish non-compliance.
The question for international law is how far the State’s jurisdiction
reaches.
Parents tend to have an instinctive sense of jurisdictional limits. If
children misbehave in our houses, we feel entitled to tell them off. We feel
entitled to reprimand children who stand outside our house throwing
stones into it, and children inside throwing stones at people in the street
outside, and to tell off our own children wherever they may be. And there
are some activities of children so gross and unacceptable that we feel
entitled to intervene, whoever and wherever the perpetrator might be. We
do not, on the other hand, generally reprimand querulous and noisy chil-
dren in supermarkets, no matter how great a contribution to the public
good that would be; nor do we relieve them of lollipops and crisp packets,
no matter how important that might appear to be in their fight against
obesity. The police, however, may reprimand anyone, anywhere. Why
should there be these differences?
There is plainly some concept of interest, of locus standi, at work here: a
concept wrapped up in the idea of there being circumstances in which one
may properly act and circumstances in which one should mind one’s own
business. The international law concept of jurisdiction maps on to my
domestic analogy with remarkable accuracy.
Let me begin by considering the limits of a State’s legislative jurisdiction,
its jurisdiction to prescribe laws. I shall use the language of the criminal

1
This may reflect a deep structural characteristic of human social interaction; or it may be
no more than a coincidence.
 International Law
law to illustrate the points for the most part, although the principles apply
to all ‘public’ laws that make up the public order of the State including, for
example, tax and competition laws.

.   

The most obvious basis upon which a State exercises its jurisdiction is the
territorial principle, that is, the principle that by virtue of its sovereignty
over its territory the State has the right to legislate for all persons within
its territory. And, as in the case of the stone-throwers, that jurisdiction
extends to people (regardless of their nationality) inside the territory who
engage in conduct that is consummated and has its main effects outside
the territory. The bomb on Pan Am Flight  is said to have been loaded
at the airport in Malta, and therefore within Malta’s jurisdiction, even
though the aircraft was American and the bomb exploded over Lockerbie
in the United Kingdom. Conversely, acts initiated abroad that have effects
within the territory—the stones thrown in from outside the garden—are
within the jurisdiction of the territorial State. The United Kingdom had
jurisdiction over the Lockerbie bombers, even though the bomb was put
on board in Malta.
Jurisdiction based upon the occurrence within the territory of one of
the elements of which the crime (or other conduct) is made up is well
established, but how far can this approach go? Customs laws have made it
an offence for ships to enter the territorial sea having broken a bulk cargo
into smaller packages (action which is usually the prelude to smuggling);
and laws on lorry-drivers’ maximum hours will take into account hours
worked outside the territory. But what if it were made an offence for
anyone ‘to enter the country having consorted with terrorists’? That
would amount to an assertion of jurisdiction over the worldwide acts of
everyone who happened to set foot in the country. Such an approach could
destroy the fundamental conception of municipal law as a territorial
phenomenon, linked to the public order of a particular State.
Further problems arise where the link between the extra-territorial and
intra-territorial conduct is more tenuous. Suppose that a number of
corporations in Europe and Japan agree to fix the prices at which trucks are
sold to buyers in Zimbabwe, but that they have no agents or active sales
campaigns in that country, merely responding passively to orders that
come from there. Could Zimbabwe properly assert jurisdiction over them,

2
These two variants of territorial jurisdiction are known as ‘subjective’ and ‘objective’
territorial jurisdiction, respectively.
 Inside the State 
and criminalize the cartel? What if they agree not to supply customers in
Zimbabwe at all, so that there is no activity within the State at all? And what
if the cartel members were encouraged, but not obliged, by their national
governments not to trade with Zimbabwe at the time? Or if their national
governments had imposed mandatory sanctions against Zimbabwe?
Two issues are entwined in those questions. One is the proper reach of
a State’s laws; and the other is the question of how we should deal with
cases where a State clearly has jurisdiction, but its exercise would conflict
with freedoms, policies, or laws of other States. Let me start with the ques-
tion, are such activities within the reach of a State’s jurisdiction?
In the absence of any element of intra-territorial conduct, some States
have asserted jurisdiction over conduct that ‘has an effect’ within the terri-
tory of the State. This ‘effects doctrine’ has been controversial, for instance
when used by US authorities to break up cartels formed lawfully by non-
US companies outside the United States. Some such cartels have been
organized with the explicit approval and encouragement of the national
States of the companies concerned, and the companies have engaged in no
actual activity whatever within the United States; but because they
affected world prices (which US consumers might have to pay) the cartels
have been held to have an impact on the United States and so to fall within
its jurisdiction. While many States have protested against some uses of
the effects doctrine, there is a growing acceptance of the need for some
such extension of jurisdiction in order to regulate effectively the activities
of transnational businesses. The emphasis has shifted from objections to
unilateral exercises of jurisdiction and towards attempts to find a frame-
work for international jurisdictional co-operation in the fields most
affected.

.  

Territorial jurisdiction ordinarily applies within a State’s land, sea, or air
territory; but other areas are also subject to a State’s jurisdiction. Seaward
of its twelve-mile territorial sea, a State is entitled to exercise jurisdiction in
three other zones. States may assert jurisdiction for customs, fiscal, sanitary,
and immigration purposes in a contiguous zone that extends a further
twelve miles seaward beyond the territorial sea. This is not part of the
territory of the State: it is simply under its jurisdiction, and then only for
the limited purposes stated. Though some States have claimed jurisdiction

3
See A.V. Lowe, ‘Blocking Extraterritorial Jurisdiction’,  American Journal of International
Law (), pp. –.
 International Law
for other purposes, such as security, in the contiguous zone those claims
are widely regarded as unwarranted by international law and accordingly
ineffective to impose obligations on foreign ships in the area.
Contiguous zones have to be claimed but the second major maritime
zone, the continental shelf, exists automatically by operation of law. It
gives coastal States exclusive rights over the exploration and exploitation
of the natural resources of the seabed seaward of the territorial sea out to
the limit of the geomorphological continental margin. The continental
shelf, as a legal institution, was created by the development in customary
international law that began with the  Truman Proclamation; but it is
now largely subsumed within the third major maritime zone, the exclusive
economic zone (EEZ), which extends  miles from the coast and is the
centrepiece of the  UN Convention on the Law of the Sea. In the
EEZ the coastal State is entitled to claim exclusive jurisdiction to regulate
the exploration and exploitation of all resources, including fish, oil, gas,
and gravel. Coastal States may also assert jurisdiction over marine pollu-
tion and scientific research in the EEZ.

.   

Jurisdiction almost certainly began as a personal, rather than a territorial,
link. Individuals would owe allegiance to a king or other leader and he in
turn would owe them a duty of protection. As his subjects they would be
subject to his jurisdiction, bound to abide by the commands that he
issued. In very early English law, for example, the King’s Peace appears to
have been a local phenomenon, attaching originally to certain places such
as the King’s court and the great highways. Anyone breaking the peace
could be brought before the King’s justices and punished. Only later did
royal control become so extensive and pervasive that the entire realm was
regarded as being within the King’s Peace. In international law terms we
would say that jurisdiction based on nationality preceded jurisdiction
based on territoriality.
The jurisdiction of a State over its own nationals is well established in
international law but rarely used, because States generally have little inter-
est in what their nationals do outside the State. In English law, bigamy,
murder, and a handful of other offences may be committed by nationals

4
The extent was defined by some curious formulae. ‘The king’s peace shall extend thus far
from his gate, where he is in residence, in all four directions from that place, that is to say, three
miles, three furlongs, the breadth of three acres, nine feet, the breadth of nine hands and nine
grains of barley’: L.J. Downer (ed. and trans.), Leges Henrici Primi (Oxford: Oxford
University Press, ), p. .
 Inside the State 
extra-territorially. One important variety of nationality jurisdiction gives
States jurisdiction over all ships and aircraft that sail or fly under the State’s
flag. This is sometimes treated as a kind of quasi-territorial jurisdiction;
but it is better to regard it as a quasi-national jurisdiction in order to resist
the temptation to regard ships and aircraft as pieces of floating or flying
territory of the State, which they are not. Not all laws that apply within a
State’s territory will necessarily apply to its ships and aircraft. There is a
presumption in English and American law, for example, that statutes apply
only within territorial limits. If statutes are to apply beyond those limits, for
example to aircraft in flight, this must be stipulated.
National jurisdiction is particularly important in places beyond the
territorial jurisdiction of any State. The three main examples are the high
seas beyond the limits of maritime zones claimed by States, Antarctica
(which, under the  Antarctic Treaty, may not be appropriated by any
State), and outer space. If jurisdiction is to be exercised in these places it
must be on some basis other than territoriality. The practice is to subject
ships and aircraft on the high seas, and spacecraft in outer space, to the
exclusive jurisdiction of the State of registry, and to attach a nationality to
camps and expeditions in Antarctica so as to reinforce the possibility of the
exercise of national jurisdiction.
One recurrent problem arises from attempts to assert jurisdiction over
foreign branches and corporate affiliates of domestic corporations. For
example, the US sanctions imposed upon Libya in  included a freeze
on Libyan assets in ‘the possession or control of US persons including
overseas branches of US persons’. The freeze applied to Libyan funds
held in a London branch of a US bank, Bankers Trust, which was bound
under English law to pay monies out of the account on Libya’s instruc-
tions and bound under US law not to pay out those monies. The English
court affirmed the bank’s duty to pay, and a potentially embarrassing
conflict between the British and American authorities was averted by a US
Treasury decision to license Bankers Trust to make the payment. The
episode illustrates both the potential reach of the nationality principle and
the problems that arise where the rules applicable to nationals conflict
with those applicable under the territorial principle.
Some States apply a variant of national jurisdiction known as ‘passive
personality’ jurisdiction, under which the State may apply its laws to per-
sons who injure its nationals. For instance, a US citizen who injures a Greek

5
National claims to segments of Antarctica that predated the  Antarctic Treaty were
suspended by the Treaty.
6
Libyan Arab Foreign Bank v Bankers Trust Co. [] QB .
 International Law
citizen in a road traffic accident in New York might be made subject to
Greek law, and summoned to defend his action before Greek courts. The
convenience of this for tourists and others injured abroad is evident; but it
must be startling to receive a summons from a State in which one may
never have set foot to answer a charge of injuring one of its nationals. It is
a form of legal imperialism; and the validity of this basis of jurisdiction is
controversial, and it is rarely relied upon in practice. To the extent that
safeguarding the interests of nationals travelling abroad is an important
social goal, one wonders whether it is not better met by travel insurance.

.  

Territoriality and nationality are not the only bases of jurisdiction. Every
State has jurisdiction over conduct, wherever and by whomever it is
carried out, that threatens its essential security interests. For long this
basis was narrowly construed, covering offences such as the counterfeit-
ing of the State’s currency and other serious threats to the State’s exist-
ence. But in the s States began to use it as a basis for the assertion
of extra-territorial jurisdiction over drug-traffickers and other attempts
to subvert customs and immigration laws. In the present climate this
convenient facility for extending the jurisdiction of the State is likely to
prove increasingly attractive to governments.
Treaties addressing various aspects of terrorism have already moved in
this direction. For example, Article () of the  Convention on
Nuclear Terrorism, having affirmed States’ jurisdiction over offences in
their territory or on their ships and aircraft, provides that:
A State Party may . . . establish its jurisdiction over any such offence
when:
(a) The offence is committed against a national of that State; or
(b) The offence is committed against a State or government facility of that
State abroad, including an embassy or other diplomatic or consular prem-
ises of that State; or
(c) The offence is committed by a stateless person who has his or her habitual
residence in the territory of that State; or
(d) The offence is committed in an attempt to compel that State to do or
abstain from doing any act; or
(e) The offence is committed on board an aircraft which is operated by the
Government of that State.

7
See, e.g., the Digest of United States Practice in International Law , p. .
8
See, e.g., US v Gonzalez,  F. d  ().
9
See <http://www.un.org/terrorism/instruments.html>.
 Inside the State 
Paragraph (a) is an application of the passive personality principle,
uncontroversial here because it is established by agreement. Paragraph (c)
is an extension of nationality jurisdiction, albeit arguably unnecessary: if a
State were to assert jurisdiction over a stateless person, there would by
definition be no State that could object that its rights had been violated.
But paragraphs (b), (d), and (e) are more noteworthy here. They address
what might be called the Achille Lauro problem. In  an Italian cruise
ship in Egyptian waters was hijacked by terrorists supporting the
Palestinian cause. They killed one of the passengers, Leon Klinghoffer,
who was a United States citizen and Jewish. The hijackers were trying
to bring pressure upon Israel to release Palestinian prisoners. Whereas
Egypt (as the territorial State) and Italy (as the State of registry of the ship)
had jurisdiction over the hijacking, the State against whom the attack was
primarily directed—Israel—had no jurisdiction over the hijacking under
the established bases of jurisdiction in international law. Paragraphs (b),
(d), and (e) above provide, as between the States Parties, a basis upon which
targeted States that cannot assert jurisdiction based on territoriality or
nationality may rely. Such developments in treaty law may foster a parallel
development in customary international law, perhaps as an extension of the
protective principle.

.  

Some crimes are regarded as so serious that all mankind has a legitimate
interest in repressing them, and all States have the right under inter-
national law to criminalize them and to put alleged offenders on trial.
That, in essence, is what universal jurisdiction is. Piracy is the archetypal
example and it illustrates another part of the rationale for universal juris-
diction, which is the difficulty faced by any one State in apprehending
suspected offenders. On the high seas, where ships are in principle subject
to the jurisdiction only of their flag State (so that, for example, Spain could
not arrest a pirate ship flying the Dutch flag if it was outside Spanish
waters), the problems were clear. Crimes against humanity, serious war
crimes, and genocide are also generally regarded as falling within the
principle, and possibly torture and slavery, too. The United Kingdom
asserts universal jurisdiction over the offence of knowingly causing a
nuclear explosion without authorization.

10
See the Princeton Principles on Universal Jurisdiction, , <http://www.umn.edu/
humanrts/instree/princeton.html>.
11
See the Anti-terrorism, Crime and Security Act , ss. , .
 International Law
While the existence of a category of offences subject to universal
jurisdiction is firmly established, its scope, and the persons to whom it
applies, is controversial. Courts in a number of European States have
asserted jurisdiction on this basis over foreign government officials accused
of torture and crimes against humanity, and have named other officials as
witnesses in the proceedings. The result, as General Pinochet found, is that
foreign travel may end in arrest on very serious criminal charges relating to
acts committed in their home State. Some States whose officials face these
charges have protested. (If their home government positively wished to
prosecute its officials for their misdeeds, it is likely to have taken action
itself.) They object that exposure to arrest impedes the movement of
officials, and that charges against government ministers or Heads of State
violate their immunity. Several cases objecting to the exercise of jurisdiction
by European courts in these circumstances have come before the
International Court. In the Arrest Warrant of  April  (Democratic
Republic of the Congo v Belgium) case, the Court held that the arrest warrant
issued against the incumbent Minister for Foreign Affairs of the Congo did
not respect his immunity from criminal jurisdiction under international
law, and Belgium was ordered to cancel the warrant.
Those cases in the International Court illustrate the political friction
that can be generated by exercises of universal jurisdiction; but another,
more fundamental, issue must also be considered. Criminal law serves the
interests of a community. Not all laws are enforced with equal vigour all of
the time. Sometimes the police may direct particular effort into action
against drugs or knife crime, or into completing their paperwork, and turn
a blind eye to other crimes, such as prostitution or traffic offences. They
will usually be guided by the wishes of the community that they serve,
expressed through a Police Committee or some similar system for political
control and accountability. The exercise of universal jurisdiction may
detach the decision concerning the desirability of prosecuting a particular
offence from the community most affected by it, and transfer the discretion
to prosecute to a foreign authority which may know little of circumstances
in the State directly affected and understand even less. This is also an
objection against the establishment of international criminal courts with
prosecutorial discretion. Some issues need to be addressed internationally,

12
In , the Congo filed a claim against Belgium in the case of Arrest Warrant of  April
 (Democratic Republic of the Congo v Belgium), ICJ Reports , p. . The case of Certain
Criminal Proceedings in France (Republic of the Congo v France), was filed in , and in 
Rwanda filed a claim against France relating to warrants issued by French courts in connection
with the shooting down in  of an aircraft carrying the Heads of State of Rwanda and
Burundi.
 Inside the State 
rather than by each State, because it is the essence of universal jurisdiction
that it should serve an agreed community interest and not simply the
particular interests of any individual State: but who determines the com-
munity interest?

.  -

  
Legislators try to draft laws that are not easily circumvented, and some-
times frame laws in ways that do not fit within any of the established bases
of jurisdiction. There was for many years a tiresome, and in my view
fatuous, debate over the question whether a State claiming jurisdiction on
some novel basis is obliged to justify its claim, or whether those opposing it
are obliged to prove that international law specifically prohibits the claim in
question. But there is no recorded instance of a State attempting to prove
the existence of such a prohibitive rule, and it would be astonishing if there
were. If a State seeks to apply its law to persons or conduct which appear
to have no real connection with the State, other States are entitled to ask
what right it has to do so. Thus, in , when the US tried to prevent the
acquisition of militarily valuable US technology by the Soviet Union,
making it a criminal offence for anyone, anywhere, to export to the Soviet
Union goods containing more than a certain proportion of components or
technology of US origin, European States objected. The main European
Community protest—the ‘Comments’ of  August —are a classic
statement of opposition to excessive jurisdictional claims.
One of the most extraordinary jurisdictional claims ever made is that
contained in the US Military Order of  November , which sought
to prohibit the making of habeas corpus and similar applications to foreign
or international courts on behalf of the individuals incarcerated in the
United States’ base at Guantanamo Bay, Cuba. The Order stipulated that:
the individual shall not be privileged to seek any remedy or maintain any proceed-
ing directly or indirectly, or to have any such remedy or proceeding sought on the
individual’s behalf, in (i) any court of the United States, or any State thereof,
(ii) any court of any foreign nation, or (iii) any international tribunal.
Peace groups in, say, the remotest villages of West Wales could violate that
Order merely by asking the Inter-American Court of Human Rights, or

13
 ILM  ().
14
<http://www.whitehouse.gov/news/releases///print/-.html>.
15
Which, to its credit, acted anyway: see  ILM  (). And see the decision of the US
Supreme Court in Rasul v Bush  US  ().
 International Law
the UN Human Rights Committee to take up the question of the legality
of the detention of the Guantanamo prisoners.

. - 

Despite the resistance to excessive jurisdictional claims, there is a general
recognition that territorial jurisdiction is an inadequate basis for regulat-
ing problems of the modern world such as international crime, terrorism,
cartelization, and pollution. But it is also appreciated that no matter how
wide it casts its jurisdictional net no single State or small group of States
can effectively regulate matters without the co-operation of other States.
The emphasis is firmly upon international co-operation, secured by treaty
agreements which allocate jurisdiction and responsibility among States
Parties.
Co-operation of this kind exists in many fields. The fight against terror-
ism is one prominent example. A set of treaties deals with various aspects
and manifestations of terrorist activity, ranging from aerial hijacking to
hostage-taking, nuclear terrorism, and terrorist financing. The general
pattern is that each State Party agrees to criminalize conduct specified in
the Convention and to assert jurisdiction over such crimes as are commit-
ted in its territory or on one of its ships or aircraft or by one of its nationals.
States Parties also assert jurisdiction over those crimes if they are com-
mitted by a person found within its territory whom the State does not
extradite to another State Party having jurisdiction over the crime. In this
way a kind of treaty-based universal jurisdiction is established between
the Parties.
Under such treaties States are obliged either to extradite persons within
their territory accused of the crime, or to submit the case to their own
authorities for the purposes of prosecution: this is the ‘aut dedere, aut judi-
care’ obligation. The Conventions thus address a number of different
aspects of the problem: they stipulate which bases of jurisdiction must be
applied by States Parties to the Convention crimes, (and may also list
further, optional bases of jurisdiction), and so ensure that there is no
jurisdictional gap which might prevent the prosecution of an alleged
offender; they oblige States to act in respect of suspects found within their
territory; and they establish a basis for the international transfer of
accused persons through the mechanisms of extradition.

16
See <http://www.un.org/terrorism/instruments.html>.
 Inside the State 

.   


The co-existence of various bases upon which legislative jurisdiction
might be exercised creates the possibility of competing and conflicting
claims to jurisdiction. In the Achille Lauro hijacking both Egypt and Italy
had jurisdiction, and jurisdiction might have been claimed by other
States, such as the national State(s) of the hijackers and—in the view of
some States—the national States of the victims. Any of these States could
try the accused, if it managed to apprehend them.

.   

-
If an accused person is detained by one State, another State having
jurisdiction over the alleged offence may seek his extradition. Though they
are entitled to do so, most States will not extradite suspects unless they have
an extradition treaty with the requesting State. The need for a treaty, as a
matter of the law or policy of the requested State, usually flows from a desire
to ensure that no-one is sent to face imprisonment and trial in another State
without a showing of some cause (normally a prima facie case against the
accused) and without giving the person concerned an opportunity to apply
to a court to oppose the extradition. This process has been subverted by the
‘irregular rendition’ of persons by covert flights, apparently organized by
the United States with the complicity of other States in Europe and
elsewhere, between secret detention facilities. The numbers and identities
of the persons, and the evidence and charges (if any) against them, were not
publicly known, and they were effectively beyond the protection of the law.
Extradition law varies from State to State but some common principles
appear in most extradition treaties. Extradition is available only for
serious offences, as defined in the treaty. Under the ‘double criminality’
principle, extradition is granted only if the conduct with which the
accused is charged would amount to an offence under the laws of both the
requesting and the requested State. If extradition is granted, the ‘special-
ity’ principle stipulates that the person may be tried only for offences
listed in the extradition warrant unless the requested States consents to
other charges, and the person must have the opportunity to leave the State
after trial and sentence before any further charges are brought. The laws
of some States, such as Russia, forbid the extradition of their nationals.
17
In the European Union a European Arrest Warrant has replaced extradition procedures.
 International Law
In the nineteenth century international support for revolutionary
freedom-fighters in various States led to the development of the ‘political
offence’ exception, according to which extradition would be refused if it
was sought for political reasons such as the punishment of opposition
politicians, or in respect of a political offence, such as criticizing the
government. This creates difficulties in handling extradition requests in
respect of alleged terrorists. Their offences are archetypically ‘political’,
but some of their methods lie far beyond the limits of tolerable conduct.
The solution is international (but not universal) agreement that certain
crimes, such as indiscriminate bombings, will not be treated as political
crimes for extradition purposes. The  European Convention on
the Suppression of Terrorism, adopted during the days of ETA, the IRA,
and the Baader-Meinhof Group and Brigate Rosse, is a prominent early
example.
In addition to the network of bilateral and regional extradition agree-
ments, there are also networks of treaties on judicial co-operation, and on
co-operation between law enforcement agencies. These are generally
designed to facilitate the obtaining and exchange of information and
evidence. On the global plane, for example, the United Nations Crime and
Justice Information Network and the United Nations Office on Drugs
and Crime provide the focus for a good deal of international co-operation,
as does the better-known Interpol. There is also an extensive and well-
used network for international assistance in judicial co-operation in
non-criminal matters.
This is an appropriate point at which to mention the growth of inter-
national criminal law. States do not always wish to try or to punish sus-
pected criminals, no matter how serious their offences. They may wish to
draw a line under the past; they may sympathize with the criminal; they
may fear that a trial would generate serious domestic unrest. But it may be
thought by some, within the State or elsewhere, that the perpetrators of
the offences should not escape trial. There is a deep social need, epito-
mized by the work of the Nuremburg Tribunal, to prove, document, and
record heinous wrongdoing, so that the victims can tell their story and the
facts cannot later be denied, and so that those found guilty should not
escape condemnation and punishment. This is the thinking behind the
establishment of the international criminal courts.
Two ad hoc international courts were established by the Security
Council to try those accused of serious crimes in the Former Yugoslavia
and in Rwanda. Elsewhere, courts have been established on a different
model—the tribunals in Cambodia and Sierra Leone, for example, are
hybrid national/international tribunals, with a combination of national
 Inside the State 
and international judges but integrated into the national legal system. The
International Criminal Court (ICC) itself, established under the 
Rome Statute, is the first standing international criminal tribunal. Its role
is complementary to that of national criminal courts: it will be the forum
for prosecutions only in instances where national courts are not them-
selves handling the case, and in this way any State can keep cases out of the
ICC by prosecuting them itself. Nevertheless, the ICC has been strongly
opposed by the United States because US personnel are particularly
exposed to the Court, given the extent of US military operations and
participation in international peacekeeping around the world. The US
has, moreover, insisted that many States sign agreements not to hand over
United States personnel to the ICC. The ICC is now beginning its work,
but it is unlikely ever to wrest large numbers of cases from national courts.

.  


Where competing jurisdictions collide it has been necessary to devise
some way of resolving the conflict. There is some support for the view that
as a general rule the State asserting jurisdiction on the basis of territorial-
ity should have preference over those relying on, say, nationality; but that
is of little assistance in circumstances where a number of States appear to
have an important and equal interest in asserting jurisdiction. Three
broad approaches have been adopted to these more difficult jurisdictional
conflicts.
First, courts have sought to exercise principled self-restraint in assert-
ing jurisdiction. The United States’ courts, in cases such as Hartford Fire
Insurance Co. v California, have laid down principles that indicate the
circumstances in which they should refrain from exercising jurisdiction
and should leave a matter to be regulated by the authorities in another
State. Not surprisingly, given the oath that judges take to uphold their
national law, this approach has not led to any significant retrenchment of
jurisdictional claims—although sensitivity on the part of courts to the
rights and interests of other States is welcome. A second approach has
been to try to harmonize national laws so as to eliminate the substantive
policy conflicts that make the abstract phenomenon of overlapping juris-
diction problematic. In the area of competition law, where divergences in
national policies have in the past been particularly troublesome, there has
been a clear convergence of policies in recent years, assisted by progress in
securing international agreement over trade matters generally. And third,
there are international agreements which address jurisdictional conflict
 International Law
directly, providing procedures for the negotiated settlement of cases
where there is a clash of regulatory requirements. The  EC/US
Competition Co-operation Agreement and  EC/US Positive Comity
Agreement are examples.

.  

In addition to a State’s legislative jurisdiction, its right to prescribe laws,
there is the question of the right to enforce laws by arresting, trying, and
punishing people. The exercise of enforcement jurisdiction is an exercise
of State sovereignty, and the rule that governs it is simple. No State may
exercise its enforcement jurisdiction in the territory of another State
without that State’s permission. So, if a suspect escapes over the border
into a neighbouring State, high-speed chases by police cars must stop; and
if the police wish to get the suspect back they must fill in the forms neces-
sary for an extradition application. So clear and fundamental is this
principle that courts of one State will not even enforce the penal laws
of another State, because to do so would be to promote an exercise of sov-
ereignty by another State in the territory of the forum.
There are agreements which permit the authorities of one State to pur-
sue and arrest suspects in places within the jurisdiction of another State.
In the Caribbean, for example, there are ‘shiprider’ agreements, under
which US law-enforcement officers may be stationed on the police or
naval vessels of another Caribbean State, or may pursue suspects into the
territory and territorial sea of the other State. There is a similar regional
agreement, the Agreement concerning Co-operation in Suppressing
Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic
Substances in the Caribbean Area (the Aruba Convention).

. 
There are limitations upon the exercise of a State’s jurisdiction over
certain persons. Diplomats, though obliged to obey the laws of the States
to which they are accredited, may not be arrested. Their immunity is one
of the oldest of rules of international law, now enshrined in the 

18
See <http://ec.europa.eu/comm/competition/international/bilateral/background/
us_en.html>.
19
See Huntington v Attrill [] AC ; Rio Tinto Zinc Corporation v Westinghouse Electric
Corporation [] AC .
20
See the  International Narcotics Control Strategy Report, <http://www.state.gov/
documents/organization/.pdf>.
 Inside the State 
Vienna Convention on Diplomatic Relations and the  Vienna
Convention on Consular Relations. Heads of State and of government,
and some others such as foreign ministers, enjoy a similar immunity. The
rationale is that immunity from a State’s enforcement jurisdiction is
necessary in order to prevent the harassment of diplomats and ministers,
impeding the discharge of their official duties and the conduct of inter-
national relations. More limited immunity is enjoyed by minor officials
and employees and family members.
If a diplomat is suspected of having committed an offence or of engaging
in activities incompatible with their status, he may be declared persona non
grata and be expelled from the receiving State. Many suspected spies have
been expelled in this way over the years. Once a person ceases to be a diplo-
mat he loses his entitlement to immunity, except in respect of his official
acts, for which the immunity persists.
States also enjoy immunity from enforcement jurisdiction, in this case
based on the rationale that because States are equal sovereigns no State
can be obliged to submit to the jurisdiction of another’s courts, although
States are free to submit if they choose. Whereas diplomatic immunity is
tied to the discharge of the diplomat’s functions, the different rationale of
State (or sovereign) immunity led naturally to the conclusion that the
immunity was absolute. As States engaged increasingly in commerce,
however, it was thought that they should be subject to the same rules
as other traders. Accordingly, a doctrine of restricted immunity arose,
limited to the non-commercial acts of governments. It was given effect in
English law by the rightly celebrated judgment of the Court of Appeal in
the Trendtex case, and codified and consolidated in the State Immunity
Act . Under the Act it is presumed that foreign States are immune
from the jurisdiction of English courts, but that immunity is withdrawn
in specified circumstances, including non-commercial transactions and
the causing of death or personal injury or damage to property by acts or
omissions in the United Kingdom. Even if the State can, under one of the
statutory exceptions, be brought before the court (or chooses to submit to
the jurisdiction of the court), it remains immune from the exercise of
enforcement powers. It cannot be fined or have its representatives impris-
oned, and execution may not be levied against its property except in
respect of property that is used for ‘commercial purposes’.
The State Immunity Act does not apply to criminal law, and there is
much discussion as to the extent to which States are immune from actions
in respect of serious breaches of international criminal law, such as the
crimes of genocide and torture. The Pinochet litigation established that
immunity has its limits, and that the immunity of former Heads of State
 International Law
does not extend to acts of official torture. The rationale of the House of
Lords’ decision in that case is not wholly clear, with their Lordships pro-
ducing a range of different explanations for their decision. Subsequently,
in the case of Jones v Saudi Arabia the House of Lords made it plain that
the Pinochet decision should be understood in the context of the specific
provisions of the  Torture Convention, and not as an instance of a
general principle that immunity does not subsist in respect of grave
crimes and breaches of fundamental human rights.

.    

    ’ 
Immunities under international law are the clearest limitation upon the
exercise by a State of its jurisdiction, but they are not the only limitation.
There are other things that a State is forbidden by international law to do,
which go to the question of legislative as well as enforcement jurisdiction.
The most obvious example is the international law of human rights.
There are rights that are regarded as being so fundamental, so much a neces-
sary part of what it is to be a human being, that they can never be denied or
withdrawn. Indeed, one might regard them as being not merely rights of
individuals but as limitations upon the legal power of governments.
The substantive provisions of international human rights law are
mostly set out in treaties. The centrepiece is the so-called International
Bill of Human Rights, which consists of the  Universal Declaration
of Human Rights, the  International Covenant on Economic, Social
and Cultural Rights, and the  International Covenant on Civil and
Political Rights and its two Optional Protocols. Many other treaties also
set international standards: for example, the Conventions on Genocide,
on Refugees, on the Elimination of Discrimination against Women, and
on the Rights of the Child. Regional agreements, such as those in Europe,
the Americas, and Africa, overlay the global texts, as do sectoral agree-
ments such as those adopted by the International Labour Organization
to protect people in the context of employment. In addition, there are
agreements that stipulate rights not for individuals but for groups of
people, such as the  European Charter for Regional or Minority
Languages, and the  European Convention for the Protection of
National Minorities. Not all of the provisions of these treaties have passed
into customary international law; many bind only the States Parties, but

21
R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. )
[]  AC .
 Inside the State 
nevertheless impose a significant limitation upon what a State may do in
exercising its jurisdiction.
Supervisory mechanisms exist under a number of the Conventions,
which establish bodies to which reports must be made and which monitor
the implementation of the Convention and compliance with its provisions.
Their reports have a powerful political impact, but the committees are
not courts and they do not have enforcement powers. The European
Convention on Human Rights, and its Inter-American and African equiva-
lents function in a more traditionally judicial fashion, hearing particular
complaints. It is also possible under the domestic laws of some States to
sue for breaches of international human rights obligations. The most
famous example is the Alien Tort statute in the United States, under
which those injured by violations of the Law of Nations may initiate
claims. That statute is, however, something of an historical anomaly (it was
enacted in ), and it is interpreted narrowly, so as to apply to a very lim-
ited range of customary international law rights.
Finally I should mention the international minimum standard of treat-
ment for aliens. Every State is obliged to accord a basic minimum level of
protection to aliens and their property within its territory. States must
take reasonable steps to preserve the safety of aliens, so that measures that
exposed them to particular risks, for example, by inflaming racial hatred,
would violate international law. States may not expropriate alien property
except on a non-discriminatory basis, for a public purpose, and against
proper compensation, for another example. The notion of what ‘proper’
compensation is has been controversial, but it is now generally accepted
that it must reflect the market value of the property taken and be paid at
the time of the taking or shortly afterwards and in a convertible currency.
Laws that do not fulfil these criteria will violate international law. These
substantive limitations upon States’ powers are being supplemented by
international standards set out in multilateral treaties on a wide range of
subjects—the control of trade in narcotics is one instance—so as to create
what is in effect an agreed, ‘contractual’ supplement to the standards of
public order, by which States Parties are bound. Such agreements are an
increasingly important component of the public orders of the States in
which we live and travel. Together with the limitations on States’ jurisdic-
tion they set the constraints within which governments may impose their
rules upon the world.

22
Sosa v Alvarez-Machain,  L. ED. d  ().
 

The Global Economy

. 
Around the turn of the millennium the British Government published
two reports: Eliminating World Poverty: A Challenge for the st Century
(), and Eliminating World Poverty. Making Globalization Work for the
Poor (). They noted that around ,,, people, almost one in
four of the world’s population, live in abject poverty, on less than $ a day.
Britain’s goal was to halve that proportion by . The  report iden-
tified two necessary elements for the achievement of that goal: an agreed
set of international policies and principles which promote sustainable
development and environmental conservation, and the political will to
deal with global poverty. The  report identified further elements,
including improved health and education, technical assistance, flows
of private investment, more open trade, sustainable development, and
effective action against corruption.
The idea that international law has a significant role in the redistribu-
tion of wealth on an international scale dates back no more than a few
decades. There have been grandiose attempts to reform the global eco-
nomic order. The Charter of Economic Rights and Duties of States is the
outstanding example. Adopted by the UN General Assembly in  as
resolution  (XXIX), the Charter sought to ‘promote the establish-
ment of the new international economic order, based on equality, sover-
eign equality, interdependence, common interest and co-operation
among all States, irrespective of their economic and social systems’, in
order to create the conditions for ‘the attainment of wider prosperity
among all countries and of higher standards of living for all peoples’. The
provisions of the Charter had little effect, but attention was increasingly
focused on the role of international law in international economic relations.

1
Cm  () and Cm  ().
2
By a majority of  votes to  with  abstentions (the opponents and abstainers including
the leading economies in Europe, Canada, Japan, and the USA).
 The Global Economy 
That role is facilitative: there is no sense in which international law
requires States to redistribute wealth or establish fairer terms of inter-
national trade. International law is simply the means by which States
resolved to do those things can establish a robust framework of commit-
ments to do so. When they create such a framework, they transform the
stage. It ceases to be an area in which action is dictated by the free play of
foreign policies and the laws of the market and becomes an area governed
by rules and procedures. As the  report put it, ‘where there are no
rules, the rich and powerful bully the poor and the powerless. In a global-
ising world, poor countries need effective, open and accountable global
institutions where they can pursue their interests on more equal terms’.
Until the middle of the twentieth century, the involvement of inter-
national law in trade matters was essentially confined to the tasks of ensur-
ing access for the major industrial States to foreign markets, and to
protecting the investments made in foreign States by investors from
industrialized States. The shameful episode of the Opium Wars of  to
 and  to  epitomizes this insalubrious phase of legal history.
British armed forces forced the opening up of China to British trade, with
the particular aim of exporting opium to China. The opium trade was an
essential element in Britain’s colonial enterprise, paying for British
imports of tea and silk. Britain was said to be shipping one ton of opium
each day from India to Chinese ports prior to the Chinese ban on opium
imports in . In the treaties of Nanjing (), Tianjin (), and
Beijing () China was forced to open up certain named ‘treaty ports’ to
foreign traders and to accept imports of opium once more, in what was
widely trumpeted as a victory for free trade.
In the Chinese Wars we see international law used to draw a cloak of
legitimacy over policies imposed by force: the overseas trading interests of
major powers were secured in treaties that had the appearance of freely
negotiated contracts. Not all trading arrangements of this period were so
startlingly hypocritical. The nineteenth century saw the conclusion of
many bilateral treaties of Friendship, Commerce and Navigation (FCN
treaties)—in which the States Parties opened up their territories for trade
with one another, and commonly guaranteed Most Favoured Nation
treatment to one another (that is, guaranteed that nationals of the other
State would receive in respect of rights of establishment, liability to cus-
toms duties, and other matters covered by the treaty, treatment no less
favourable than that given to nationals of the most favoured third State).

3
The irony of giving Britain the responsibility for leading the counter-narcotics campaign
to eradicate the Afghan opium trade in  passed largely unnoticed.
 International Law
The  Argentina–United States FCN Treaty is a typical example,
signed for the United States by Robert C. Schenck, who later became a
General in the United States Civil War, a member of the Alabama Claims
Commission, and the Ambassador to Great Britain, where he introduced
the game of draw poker to England before being summoned back to
America because of his involvement in an alleged share fraud.
Bilateral treaties were the most numerous of international trade agree-
ments in the nineteenth century and the first half of the twentieth; but
there were multilateral agreements which sought to establish global rules
in certain areas. The need to agree upon common standards for tele-
graphic equipment, for instance, led to the conclusion of a number of
regional agreements and, in , to the creation of the International
Telegraph Union (ITU). That body later took on responsibilities under
the  International Radiotelegraph Convention, and became the
International Telecommunication Union, which survives as a Specialized
Agency of the United Nations. Similarly, the Universal Postal Union
(UPU) was formed in  in order to bring some order to international
mail services.
While the creation of the ITU and UPU might be regarded as pre-
dictable responses to the imperatives of international commerce, the estab-
lishment of the International Labour Organization (ILO) at the Paris Peace
Conference in  was more unusual. As Article  of the Treaty of
Versailles records, the States Parties agreed to ‘endeavour to secure and
maintain fair and humane conditions of labour for men, women, and
children, both in their own countries and in all countries to which their
commercial and industrial relations extend’; and the ILO was set up for that
purpose. The pressures for its creation were a mixture of humanitarian con-
cerns for the welfare of working people, a desire to ensure that disillusioned
workers did not follow the example of their Soviet brothers and sisters and
produce, in the words of the ILO Preamble, ‘unrest so great that the peace
and harmony of the world are imperilled’, and a concern that States that did
implement social reforms would not find their competitive position under-
cut by States that permitted more primitive labour practices and standards.
This combination of motives is reflected in the structure of the ILO, which
is unusual in not consisting entirely of representatives of governments. Its
governing body consists of  representatives of governments,  represen-
tatives of employers and  representatives of workers. The representatives
of the different interests frequently speak and even vote against one another,

4
<http://www.yale.edu/lawweb/avalon/diplomacy/argentina/argen.htm>.
 The Global Economy 
although unanimous votes from individual States are more common than
might be supposed. The ILO monitors the performance of Member States
in labour matters, and has complaints procedures which, like the ILO itself,
include representatives of government, workers, and employers. The
procedures have been invoked, for example, in relation to the prohibition
which used to exist upon trade union membership by employees of the UK
Government Communication Headquarters (GCHQ), an intelligence-
gathering facility.
The organizations discussed so far were all established by inter-State
agreement; but many international arrangements were established by
private enterprises. The chartered companies, such as the East India
Company, the Hudson’s Bay Company, and the Dutch East India
Company, all established in the seventeenth century, had exercised quasi-
governmental powers in the territories that were effectively controlled by
them. Elsewhere, cartels were formed to align production and demand in
some industries, particularly those concerned with the production of
primary commodities, usually at a level that optimized the profits of the
participants. Some were very efficient. It is said, for example, that the inter-
company agreements limiting whale catches were more effectively imple-
mented than the conservation measures adopted by the International
Whaling Commission (IWC), because whaling companies knew that their
profits depended directly upon the application of reasonable quotas
whereas those negotiating inter-State agreements tend to accept unreason-
ably high quotas in order to placate their domestic industries. Enterprises
also made arrangements less directly serving the profit motive. They set
technical standards, to ensure the compatibility of goods: the International
Electrotechnical Commission (IEC) was established for this purpose in
, for example. They adopted common forms and procedures in order
to streamline commercial and banking operations; and they worked for the
harmonization of national laws.
All of these functions are now reflected in international arrangements
adopted by States. There are commodity agreements that aim to stabilize
prices by matching production and demand; conservation regimes that
aim to ensure that over-exploitation of commodities does not jeopardize
sustainable development; agreements to reduce technical barriers to
trade; and organizations charged with pressing forward the agenda of har-
monization of laws and procedures. Even matters that had traditionally
been the preserve of national governments, such as the imposition of taxes
and customs duties, the grant of monopolies and State subsidies for
industry, and the control of money supply and convertibility, were the
subject of increasing international co-operation in the period before .
 International Law
The legal landscape changed after World War Two. The creation of the
United Nations Organization might be regarded as a second attempt at
the achievement of the political goals of the League of Nations: but the
economic institutions that were designed as part of the post-war inter-
national structure carried formal inter-State co-operation into a new
phase. One may speculate on the reasons. Perhaps it was the widespread
view that World War Two was a result of economic pressures created by
the Versailles settlement after World War One, the hyperinflation of the
s, and the great economic depression that began in . Perhaps it
was the simple fact that rebuilding the many States whose economies had
been severely damaged by World War Two demanded a wide-ranging
economic programme. Or perhaps the moves simply made sense, as a way
of improving the functioning of the world economy. But for whatever rea-
son, the attempts to rebuild the international (or at least, the European–North
American) order after World War Two were as much economic as political.
The European Community sprang from the idea that binding France and
Germany, and in particular their coal and steel industries, to one another
was the best way of avoiding another European war; and the creation of
what was planned as the triumvirate of the World Bank, the International
Monetary Fund, and the International Trade Organization was intended
to induce prosperity and peace on a global scale.

.      

 ,   , 
  
In August , in the depths of World War Two, President Roosevelt of
the United States and Winston Churchill, Prime Minister of Great
Britain, met on the USS Augusta, anchored off Argentia, Newfoundland.
Their purpose was to agree upon the manner in which the United States,
still formally neutral in the War, would assist the Allies. The terms that
they agreed were not published; but they did make a press release. It set
out the basic principles of international relations to which the two coun-
tries were committed, including the principle of self-determination and
self-government (which the United Kingdom did not consider to apply to
British colonies) and two provisions directed at economic reform. They
committed their respective countries ‘to further the enjoyment by all
States, great or small, victor or vanquished, of access, on equal terms, to

5
Leo Amery, Secretary of State for India, declared later in  that calls to apply the Atlantic
Charter provisions of self-government to India were ‘a typical example of loose thinking’.
 The Global Economy 
the trade and to the raw materials of the world which are needed for their
economic prosperity’ and announced their ‘desire to bring about the
fullest collaboration between all nations in the economic field with the
object of securing, for all, improved labor standards, economic advance-
ment and social security’.
Those provisions were vague but this did not matter, because the pur-
pose of the Atlantic Charter, as the press release was grandly named, was
to signal to the Axis powers the solidarity of the signatories, Britain and
the United States. But the Atlantic Charter did reflect the view that the
regulation of the international economy was essential for a stable peace.
In July  representatives of forty-four governments, including the
United States, (Communist) Russia, (non-Communist) China, the
United Kingdom and countries in the British Commonwealth, and
France, met in the New Hampshire resort of Bretton Woods to discuss
ways of promoting international economic stability.
The Bretton Woods conference established three commissions, one
to draft the Articles of Agreement of the International Monetary Fund
(IMF), a second to draft the Articles of the International Bank for
Reconstruction and Development (IBRD, better known as the World
Bank), and a third to consider other means of international financial
co-operation. The drafts were adopted in the astonishingly short time of
three weeks; and the IMF and IBRD Articles of Agreement entered into
force on  December .
The ‘trade’ element of the system was negotiated separately.
Negotiations between the United States and the United Kingdom from
 onwards led to a proposal in a  US paper on ‘Proposals for
Expansion of World Trade and Employment’ for the establishment of an
International Trade Organization and an agreed set of principles on a wide
range of matters related to international trade, such as tariffs and non-
tariff barriers, trade quotas, subsidies, most-favoured-nation treatment,
and cartels. A conference was convened in  under the auspices of the
recently-established United Nations Economic Council to draft a text
which was submitted to the UN Conference on Trade and Development
held in Havana in November  and became the Havana Charter. At the
same time tariff-cutting negotiations were held in the ‘Geneva Round’
negotiations of , which produced the General Agreement on Tariffs

6
One of the great mysteries of international law is how an original copy of the Havana
Charter, bearing the signatures of the plenipotentiaries (and with the Polish representative’s
signature apparently crossed out) came to rest in a food cupboard in a house in Liverpool.
It is now in the Bodleian Library, Oxford, with a note by Sir Adam Roberts describing the
circumstances of its discovery.
 International Law
and Trade (GATT). The GATT recorded both the agreed tariff concessions
and other agreed principles for the conduct of international trade, and was
opened for signature in October .
The proper focus of the  Havana Conference was controversial.
Questions such as the permissibility of discriminatory trade preferences
(for example, the ‘Imperial Preference’ applicable to trade within the
British Empire) were fiercely debated. The original free-trade model was
subjected to more and more qualifications, and the idea of creating
another international organization, of questionable value to US trade
interests, faced increasing opposition in the US Congress. The Truman
Administration decided in  that it would not put the Havana Charter
to Congress for adoption, and the project collapsed as other States took
the lead from the United States. The GATT did, however, survive. It had
been applied since  on a provisional basis, pending the anticipated
entry into force of the Havana Charter and establishment of the ITO; and
it continued to be applied ‘provisionally’ for the best part of half a century,
until it was superseded by the World Trade Organization.
The establishment of the IBRD, the IMF, and the GATT marked the
beginnings of a serious attempt to make the international economy a rule-
based system, rather than a power-based system in which the most power-
ful players in the international markets prospered at the expense of the
weak. To see how these rules operate (or at least were intended to operate)
it is necessary to look in a little more detail at this trio of institutions.

.   

The roles of the World Bank and the IMF are sometimes confused, no
doubt because both of them appear to some to epitomize the reactionary
forces of international capital. The distinction is simple: as Keynes is
reputed to have said, the Bank is a fund, and the Fund is a bank. In crude
terms, the World Bank is a source of funding for States, while the IMF acts
to preserve the stability of the international monetary system by oversee-
ing exchange rates and the convertibility of currencies.
The aim of the international community in establishing the World
Bank was to make long-term financial aid available at reasonable rates to
restore war-damaged economies and to promote sound industry and
increase industrial and agricultural production in developing countries.
The World Bank’s primary function, set out in Article  of its Articles of

7
To be carefully distinguished from the  Havana Conference, at which Lucky Luciano
presided over a meeting of American gangland bosses.
 The Global Economy 
Agreement, is ‘to assist in the reconstruction and development of territories
of members by facilitating the investment of capital for productive purposes’.
It does so by arranging or guaranteeing loans made to States by private
sector banks, and where private capital is not available on reasonable terms
by making relatively long-term (typically  to  year) investment loans
to States to finance economic and social development projects from its
own resources. Those resources come in small part from subscriptions
of Member States, but largely from the sale of the Bank’s own bonds in
international capital markets. Those bonds, backed by the contributions
that the Bank is entitled to call upon from Member States, are regarded as
secure investments; so the Bank is using its reputation and economic
strength to obtain money at low rates from the market which it can then
lend on to States which could borrow from the market only on much less
advantageous terms. The Bank also provides shorter-term ( to  year)
development loans to support policy and institutional reforms in States;
and it operates a number of funds from which grants can be made.
The scale of Bank operations is large. Each year it makes loans, (or
grants, in the case of the very poorest countries), totalling around $
billion. Lending policies were influenced by political factors during the
Cold War, but the Bank now tries to take decisions based upon the viabil-
ity of the project and its value to the State in question. Discipline is tight.
If a State fails to make repayments, after one month the Bank puts a bar
on any further loans, and after two months it stops further payments on
existing loans.
All banks, if they lend money on a project, will try to ensure that the
project is viable and that the sums lent can be recovered, or at least that the
borrower can meet the interest payments. That is what happens when one
obtains a mortgage from a bank and one’s earnings and savings are mea-
sured by the bank and a surveyor is sent round to value the property.
Similarly, the World Bank will try to ensure that the project is properly
planned and properly authorized under the law of the State concerned. But
it goes further. Its own internal operational policies and procedures, which
are published, require that it check that the project conforms to a range of
social, economic, and environmental guidelines, such as the minimization
of environmental harm and the avoidance of forced relocations of indigen-
ous populations that might arise in the context of a large dam project, for
example. There is a considerable correspondence between these guidelines
and basic principles of human rights and environmental law.
Adherence to the Bank’s guidelines is monitored by the Independent
Evaluation Group, which also has oversight of operations in other inter-
national financial organizations. There is an important and imaginative
 International Law
procedure for dealing with complaints, established in . Any two or
more people in the country where the Bank-financed project is located
may complain that the Bank has violated its own policies and procedures
and thereby caused harm to their material interests. If the local people
cannot complain, bodies such as NGOs may complain on their behalf.
Complaints are investigated by the three-person World Bank Inspection
Panel, which reports on the Bank’s adherence to its policies and proced-
ures, in accordance with guidelines contained in the  ‘Clarification’ of
the role and functions of Panels. Though the Panels, which had handled
about forty cases by , are non-judicial and some cases turn on factors
such as the scientific adequacy of environmental assessments, it is evident
from the published reports that legal argument has an important role. In
the  report on the Colombia: Cartagena Water Supply project, for
example, there is detailed discussion of the conformity of the project with
instruments such as the  Cartagena Convention for the Protection
and Development of the Marine Environment of the Wider Caribbean
Region, compliance with which was one of the conditions of the
Colombian licence to proceed with the project. If the Panel finds that a
project is incompatible with the Bank’s policies and procedures, the man-
agement and the Board of Executive Directors of the Bank decide what
remedial action will be taken. It may include withdrawal from the project,
as was the case in respect of the China Western Poverty Reduction Project,
where a  Panel report found non-compliance with environmental and
human rights norms. In this way, even though Panel reports are not bind-
ing, Bank monitoring procedures have become an important instrument
for securing compliance with international law.

.     

The IBRD is one of the World Bank Group of international organizations,
whose other members complement the activities of the Bank. The
International Development Association (IDA) provides long-term inter-
est-free or concessional loans and grants to the poorest countries (defined
in  as those with a per capita GNP of under $,) and is the largest
source of international donor funds for basic social services. It also pro-
vides assistance to countries in danger of ‘debt distress’—that is, an
inability to service loans from richer States, banks and international
organizations. The International Finance Corporation (IFC) is the ‘pri-
vate sector arm’ of the World Bank, promoting sustainable private sector
development in developing countries by providing loans or equity invest-
ments, typically in the $m to $m range, and technical advice and
 The Global Economy 
assistance. It invests in circumstances where private institutions will not
invest alone, and creates financial products designed to meet the needs of
the developing world. While it charges market rates, it can structure loans
so as to make repayments easier to bear.
The two remaining members of the World Bank Group are rather
different. The International Centre for the Settlement of Investment
Disputes (ICSID) and the Multilateral Investment Guarantee Agency
(MIGA) are both closely linked with the protection of private investment
in foreign States. This may appear to mark a departure from the main
focus of the Bank’s activities; but that is not really so.

.  ,

 ,  
ICSID was established by the World Bank in , with the aim of
promoting flows of private investment—foreign direct investment or
FDI, as it is known—in order to stimulate international development. It
was widely thought that investors were deterred from making investments
in many States by fear of non-commercial risks such as expropriation and
regulatory interference with the investment. Why make an investment of
many millions of dollars if the host State could simply announce that it
was being expropriated (or ‘nationalized’ or subjected to a programme of
‘indigenization’, to use some of the more genteel synonyms)?
If such action were taken against an investment, investors would have
little chance of any effective remedy. Even setting aside the concern that
national courts would tend to side with the government against the foreign
investor, expropriations and other legislative interferences could not be
overturned unless they violated some constitutional law in the host State,
and this is unlikely to be the case. Against the background of the mass
expropriations by the Communist regimes in China and eastern Europe,
and of the anti-colonial currents of the s, it is not surprising that
corporate executives, who saw their responsibilities as making profits
from secure investments and not as the development of new economies by
speculative ventures, took a cautious view of investment in the developing
States. And, as the World Bank Executive Directors put it, ‘[t]he creation
of an institution designed to facilitate the settlement of disputes between
States and foreign investors can be a major step toward promoting an
atmosphere of mutual confidence and thus stimulating a larger flow of
private international capital into those countries which wish to attract it’.
Disputes of that kind were, up to that time, handled in a cumbersome
way. Investors who failed to find a remedy in the host State’s national
 International Law
courts could turn to their own national governments and ask them to take
up the case on their behalf on the plane of international law—to exercise
the right of diplomatic protection. As a matter of international law it
would be no defence for the host State to say that it had acted throughout
in accordance with its own laws and decrees (which, of course, the host
State government could make as it chose), and in principle international
law requires that full reparation be made for losses caused by its breach.
There were, however, two major problems with this approach. First, it
was difficult to persuade governments to take up the claim. Most cases are
complex, and to persuade a government official to assimilate volumes of
detailed evidence on the making, taking, and valuation of a foreign invest-
ment, and then to draw up a claim against a foreign State, is hard. To
persuade the corresponding official in the accused State to receive the
claim and reciprocate with a detailed response is doubly difficult. And the
moment has to be right. If relations between the two States are good, the
claimant State may be reluctant to spoil them by raising the claim. If
relations are bad, the respondent State is unlikely to be co-operative. The
investor may have an enviably simple view of matters, wanting only its
money: but States have more complex inter-relationships, spanning a
wide range of economic, political, and social and other matters. If one
claim is pursued, or paid, who else will expect the same treatment? If a
particular State measure is attacked as unlawful, what will that imply if the
State wishes to take a similar action itself in future? Did the investor
not know the risks? Were they not built into its calculations of costs and
profits? Has it not made enough in the past, and is it not making enough
elsewhere, to cover these losses?
The second major difficulty lay in pinning down precisely what host
States could and could not lawfully do to investments. It was clear that
international law forbade expropriation of foreign investments unless the
expropriation was for a public purpose, was non-discriminatory, and
adequate compensation was provided. That was a view reflected in the
 Resolution on Permanent Sovereignty over Natural Resources, UN
Assembly resolution  (XVII). But what did those terms mean? Is the
expropriation of, say, British companies as a protest against some aspect of
British foreign policy an expropriation for a ‘public purpose’? Is a policy
of confiscating foreign-owned farms, but not farms owned by citizens of
the State, discriminatory, if it is part of a process of indigenization? Is
compensation from which the host State deducts a sum in respect of what
it says are excessive profits earned in the past by the investor nonetheless
‘adequate’? Are environmental laws that make it almost impossible for a
factory to operate at a reasonable profit tantamount to expropriation?
 The Global Economy 
Governments are less keen to take up claims that are legally doubtful,
particularly where large sums of money are claimed, than they are to
pursue clear violations of international law.
Given such difficulties it is not surprising that, compared with the scale
of expropriations in Russia, China, and States in eastern Europe and
elsewhere, relatively few cases of unlawful interference were pursued on
the plane of international law. Some were. In the mid nineteenth century
Britain successfully claimed against Greece for the taking of land belong-
ing to the historian George Finlay, which had been enclosed in King
Otho’s garden. At about the same time, and, with the added urgency that
the arrival of British warships to blockade Greek ports brought to the
affair, Greece paid over £, in compensation for damage caused by a
mob to the property of Don Pacifico, the Portuguese consul in Athens who
had, by the happy accident of his birth in Gibraltar, acquired British citi-
zenship and the protective interest of one of the most aggressive foreign
ministers of the time, Lord Palmerston. Palmerston declared, during the
Parliamentary debate on the Don Pacifico affair, ‘As the Roman, in days of
old, held himself free from indignity, when he could say, Civis Romanus
sum, so also a British subject, in whatever land he may be, shall feel confi-
dent that the watchful eye and the strong arm of England will protect him
from injustice and wrong.’ One could barely wish for a better, or more
florid, expression of the principle of diplomatic protection.
Pace Palmerston, the truth is that governments have never relished the
systematic protection of the property of their nationals abroad. Instances
of governments taking up single claims are rare. Among the best known
are the Chorzów Factory case, in which the Permanent Court of
International Justice ruled on the expropriation of property of German
companies by Poland, and the Anglo-Iranian Oil Company case, which the
United Kingdom tried unsuccessfully to bring before the ICJ (which
found that it lacked jurisdiction over the dispute) following the national-
ization of the oil industry in Iran by Prime Minister Mossadegh in .
It has been more common for governments to deal with claims en masse.
For example, American claims arising from revolutionary action in Mexico
between  and  were dealt with in a bilateral treaty concluded by
the two States in . The claims were submitted to a three-person
Commission, which foreshadowed the Iran-US Claims Tribunal estab-
lished to determine claims arising from the Islamic Revolution in Iran in
. Other claims have been handled by agreements in which the claimant
government negotiates a lump-sum settlement of all outstanding claims

8
 AJIL (Supp.) – ().
 International Law
with the respondent government. The sum is paid over and distributed pro
rata among claimants. In the United Kingdom the Foreign Compensation
Commission, mentioned in Chapter , has carried out this role, and it has
analogues in other States.
In all these cases the national government of the claimant has been
involved either in directly pursuing the claim or in the establishment of a
commission in which the claimant can pursue it. But large-scale investors
sought a more expeditious approach to dispute settlement, removing the
need to persuade their governments to espouse their claims. This was
done by including in agreements between the investor and the host State
a provision requiring the submission of disputes arising out of the invest-
ment to arbitration. Each party had the right to refer a dispute to arbitra-
tion, and each had an equal right to participate in the appointment of the
tribunal, usually by appointing one of three arbitrators (the third, non-
party arbitrator being appointed by agreement or by a neutral third party
designated in advance). This was the pattern followed in cases such as the
Lena Goldfields arbitration, brought by an English company against the
Soviet Union in , and the cases brought against Libya by the western
oil companies BP, Texaco, Calasiatic, and Liamco, whose property had
been nationalized by Colonel Qaddafi in the s.
The great advantage of these ‘mixed’ (State/non-State Parties) arbitra-
tions is that they leave control of the litigation in the hands of the actual
claimant. There is no need to involve the claimant’s national government
at any stage. The arbitration may, moreover, be conducted in private, and
its outcome and even its existence kept confidential. This reduces
concerns that other governments or investors may invoke the claim and its
settlement as a precedent in future negotiations. Risks of delay and bias in
the host State’s national courts are avoided. The availability of arbitration
of this kind increases the confidence of investors in the security of their
investments, and thus facilitates the making of foreign investments.
It was these advantages that the World Bank sought to harness in the
ICSID Convention, in order to encourage foreign direct investment.
While ICSID itself does not conduct any arbitrations—the ICSID
Convention functions as a framework within which individual arbitra-
tions are organized as the need arises—the involvement of ICSID is a
matter of great importance.

9
See V.V. Veeder, ‘The Lena GoldfieldsArbitration: The Historical Roots of Three Ideas’, 
ICLQ –  ().
 The Global Economy 
Arbitral tribunals, composed of arbitrators appointed by the parties to
the dispute, have the power to settle the dispute definitively, but they do
not have the coercive powers of courts to compel the production of evi-
dence, make orders for the protection of assets, and so on. Nor, unlike
courts, can they issue orders for the enforcement of arbitral awards by the
attachment of property. Arbitral tribunals may need the assistance of
courts in order to perform their duties effectively. Courts also assert a
supervisory jurisdiction over arbitral tribunals. They may remove arbitra-
tors for misconduct, and quash arbitral awards that are seriously flawed,
for example because the arbitral proceedings did not meet the standards of
natural justice. The  UNCITRAL Model Law on Arbitration and the
UK Arbitration Act  illustrate the relationship between courts and
arbitral tribunals. But the corollary of this helpful relationship of support
and supervision is that disgruntled parties may use applications to courts
as a means of delaying the arbitral process and the finality of arbitral
awards. In the ICSID Convention, the States Parties agreed to a different,
self-contained system which allows no resort to any other remedy, and
no exercise of diplomatic protection by the investor’s host State.
‘Interference’, as it may be seen, by national courts is averted. ICSID
awards may not be challenged in national courts, and national courts are
obliged to recognize and enforce those awards. No record is kept of com-
pliance with ICSID awards, but the prominence of the process (secured
by ICSID’s practice of publishing the fact that a dispute has been referred
to arbitration, even though the actual proceedings themselves may be kept
private) and the fact that the system operates under the auspices of the
World Bank, appears to result in a very high degree of voluntary compli-
ance with awards by losing States.
The ICSID Convention leaves two crucial gaps to be filled by other
instruments. One is the consent of the Parties—the investor and the host
State—to go to arbitration, which is essential in every case. Consent may
be given in various ways. It may be contained in a dispute settlement
clause in an investment contract, or the State may make an open offer to
investors to take disputes to ICSID arbitration by a provision in its
national investment law or in a bilateral investment protection treaty (or
BIT), though the treaty provisions only apply to nationals of the States
Parties.
The second gap in the ICSID Convention is that it says nothing about
the substantive rights and duties of investors and host States. Customary
international law protects the property of aliens against uncompensated
and arbitrary expropriations and against damage resulting from a failure
of the State to provide the minimum protection of alien property from
 International Law
malicious damage. BITs secure those protections and go further. Their
precise provisions vary, but most of the , or so BITs now in existence
protect investments against treatment by the host State which is not ‘fair
and equitable’. That is a striking extension of protection, because it pro-
vides a guarantee against unfair and inequitable treatment even if that
treatment is in accordance with the host State’s law. Tribunals are devel-
oping a concept of fair and equitable treatment that includes, for instance,
a requirement that host State authorities behave transparently towards
investors, giving adequate publicity to laws and administrative procedures
and practices. While BITs protect only foreign investors, and not the host
State’s own citizens, the requirements of transparency are concerned with
the ways in which governments are structured and operate, and so have a
significant influence on the whole system of governance within the State.
One crucial question is, how does one distinguish between legitimate
regulation on the one hand and unfair and inequitable treatment on the
other? May a host State impose price controls, or additional taxes, on a for-
eign investor if that significantly reduces its profitability? Or would that
violate the BIT? There is, as yet, no comprehensive and coherent doctrine
that establishes the boundaries of permissible regulation. The scores of
investment tribunals now hearing cases are taking decisions that will
define the nature of the responsibilities of States towards foreign invest-
ment and have a substantial influence upon the nature of international
economic relations.
BITS set out the rights of investors. They do not set out the rights of the
host State, and some have thought that this evidences an unacceptable bias in
the system. There have been attempts to set out the duties of investors. In
, at the same time that the Charter on Economic Rights and Duties of
States was being drafted, the UN Centre on Transnational Corporations
(UNCTC) was established, following a report on Multinational Corporations
in World Development commissioned by the UN’s Economic and Social
Committee (ECOSOC). The UNCTC worked for many years on the
preparation of a UN Code of Conduct for Transnational Corporations,
which would have set out the responsibilities of foreign investors towards
host States and their people and economies; but enthusiasm for the rhetoric
of the new international economic order waned as States studied the fine
print of drafts of the Code and the economic realities bore in upon them.
The effort was abandoned in , when the work of the UNCTC was trans-
ferred to UNCTAD—the UN Conference on Trade and Development—
which continues to produce expert reports on the subject.
Other bodies have had more success in adopting codes of conduct with
a narrower focus. For example, in  the Organization for Economic
 The Global Economy 
Co-operation and Development (OECD), a group of market-economy
countries including Australia, Canada, Japan, Korea, Mexico, the
European States, and the USA, produced the Declaration and Decisions on
International Investment and Multinational Enterprises, since revised,
which has proved an influential statement of investors’ responsibilities. In
 the ILO produced the Tripartite Declaration of Principles Concerning
Multinational Enterprises and Social Policy (the ‘MNE Declaration’), a
voluntary code agreed by representatives of employees, employers, and
governments. And in , the UN ECOSOC adopted a statement of
Norms on the Responsibilities of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights. The most ambitious is
the UN’s Global Compact, launched in , which sets out ten ‘universal
principles’ in the areas of human rights, labour, the environment, and
anti-corruption. The Compact sets an agenda and basic standards of
behaviour towards which companies, NGOs, and governments will work.
By  around , businesses in  countries had adhered to the
Compact; and perhaps more significantly, in an attempt to maintain the
integrity of the Compact the UN had removed  companies from the list
of participants because they had failed to submit the required annual
Communications on Progress on Implementation of the Principles. There
are also many voluntary sectoral codes, which may have only limited
success in bringing about an age of corporate moral purity but do at least
signal an awareness that companies have social responsibilities.
The real point concerning the balance between the rights of investors
and the rights of host States, however, is that the balance of individual
legal documents—or even of the whole collection of legal instruments—
has little relevance to the issue. There is no more point in seeking a
balanced BIT setting out investors’ duties than there is in amending the
Universal Declaration on Human Rights to include provisions on the
duty to pay taxes and obey the law. Corporations may be powerful; some
have wealth far exceeding that of many States: but most do not. All
governments have the power to make laws and demand obedience to them,
and that is how the rights and legitimate interests of States are most
effectively protected—not by making general proclamations that
companies ought to behave as good citizens, true as that may be.
Foreign investors are not merely tolerated: they are actively encour-
aged. Governments advertise the advantages of locating facilities in their
countries: cheap labour, low taxes, generous development grants, low
tariffs, and so on. Governments also seek to assist outward investment.
Many States have bodies such as the United Kingdom’s Export Credit
Guarantee Department (ECGD) which provide investment insurance
 International Law
and co-ordinate policies through the Berne Union. Exporters pay a
premium to insure themselves against non-payment of their bills, expro-
priation by foreign governments, and other non-commercial risks. The
one member of the World Bank Group not yet discussed does the same on
the international plane. The Multilateral Investment Guarantee Agency
(MIGA) was established in  in order to promote foreign investment
and international development. It provides technical assistance on invest-
ment issues to developing States, and is available to mediate in investment
disputes. It is perhaps best known as a provider of insurance against polit-
ical risks, including losses resulting from war risks, expropriation, the
imposition of currency transfer restrictions, and non-payment of judg-
ments or awards against a host State arising from the breach or repudi-
ation of a contract. Cover is available for investors from the  States
Parties to MIGA who wish to invest in developing countries that are
themselves members of MIGA. MIGA offers insurance cover of up to
% of the value of the investment, up to $m, often acting in partner-
ship with public bodies, such as the ECGD, and with private insurers.
There were plans, pursued within the OECD from  to , for
another international organization, the Multilateral Agreement on
Investment (MAI). It was intended that the MAI would be open to all
States and would ‘provide a broad multilateral framework for inter-
national investment with high standards for the liberalisation of invest-
ment regimes and investment protection and with effective dispute
settlement procedures’. Following widespread criticism of the draft text
for the MAI, which was thought excessively favourable to investors and
burdensome for governments, the attempt to establish the MAI was
abandoned at the end of , shortly after the new French Government
withdrew from the negotiations.
The development of BITs is proceeding in a different direction. Rather
than strengthening international protections of investments, govern-
ments are becoming more sensitive to the constraints that BITs impose
upon their regulatory powers and their ability to steer the development of
their economies. Investment protection is increasingly seen not as an
aspect of the duties of a State towards citizens of another State, but as an
aspect of the network of economic relations that each State has with
others. High levels of protection are seen as benefits rather than rights, to
be negotiated and traded against concessions in other areas, such as
market access; and some sectors of the economy may be excluded
altogether from the protections of the BIT, at least in respect of the
national treatment provisions. The investment protection provisions are
integrated with provisions based upon the General Agreement on Trade
 The Global Economy 
in Services (GATS), to which I will refer shortly. While these trends can
be seen even in early BITs, they are more clearly evident in the generation
of BITs exemplified by the  United States Model BIT.

.     

 
In  The Economist magazine devised a scheme for measuring
Purchasing Power Parity, i.e., the price in different currencies of a stipu-
lated basket of goods that constitutes the ‘standard’. Economic theory has
it that in the long run the price of such a standard basket should equalize
around the world. If the price in the USA, converted into pounds, is lower
than the price in the United Kingdom, enterprising traders will export
the goods from the United States, thus increasing demand and raising
prices there, and import them into the United Kingdom, thus increasing
supply and lowering prices here. In theory, therefore, the prices of a stand-
ard commodity in different currencies should give some indication of the
relative values of those currencies—of their exchange rates.
The Economist used a Big Mac as a standard, because of its ubiquity
(it is available in well over  countries) and its uniformity (hold the
relish and it is more or less the same everywhere). Today, a Big Mac costs
$. in the United States, . yuan in China, and £. in the United
Kingdom, for example. Measured against the Big Mac standard, there-
fore,  yuan is worth $., and £ is worth $.. In fact, hamburger-
nomics provide an inaccurate guide to exchange rates because the simple
conversion does not take account of a range of factors that affect price.
Different labour costs, transportation and storage costs, rents and busi-
ness overheads, and taxes, all affect the picture. But the idea is plain
enough.
Problems with storage and perishability make the hamburger unattractive
as an international monetary standard; but gold has been used to serve the
same role. The value of many currencies has in the past been pegged to the
value of gold or silver. In the early eighteenth century Sir Isaac Newton,
then Master of the Royal Mint, defined the weight of gold and silver that
was to be included in English coins; and in  the Bank Charter Act
defined the value of England’s paper currency in terms of its convert-
ibility into gold. As Sir Robert Peel said during the Parliamentary debate on
the Bill, ‘according to practice, according to law, according to the ancient
monetary policy of this country, that which is implied by the word “Pound”

10
< http://www.state.gov/e/eb/rls/othr/.htm>.
 International Law
is a certain definite quantity of gold with a mark upon it to determine
its weight and fineness, and . . . the engagement to pay a Pound means
nothing, and can mean nothing else, than the promise to pay to the holder,
when he demands it, that definite quantity of gold’. The relative values of
the pound and other currencies similarly linked to the value of gold could
thus be easily calculated.
From about  to  there was widespread adherence to the gold
standard among major economies. The economic model in its simplest
form predicted that if a State spent more on imports than it had earned in
exports, gold would flow out of the country, interest rates would rise,
spending would decrease, and equilibrium would be restored. Conversely,
a State into which gold flowed could increase the money supply because it
held more gold to back its paper currency, and would see falling interest
rates, increasing spending, and an economic boom. In this way any dis-
equilibrium in the balance of payments between a State and its inter-
national customers and suppliers would, in theory, correct itself. Of
course, the system never worked like this. Not all States were on the gold
standard (or the gold-exchange standard, in which a currency was pegged
not to gold but to another currency which was itself pegged to gold). In
those that were, the economic contraction and fall in wages that would,
under this theory, follow an outflow of gold were slow to occur: workers do
not willingly accept pay cuts, and governments tend to intervene in the
economy to soften the impact of economic downturns. The ‘Invergordon
Mutiny’ of , in which British Navy personnel refused to perform
their duties in protest at a cut of around % in the pay of naval ratings,
which had been imposed as part of an emergency budget measures
intended to stop the outflow of gold from the United Kingdom, was a
good example of the social realities that could interfere with the theory of
the gold standard.
The system could not cope with the strains that arose from World War
One. States spent more on armaments than they had in the bank, and
printed more and more paper money to cover the costs. Germany had to
borrow from the United States to pay the swingeing reparations that it
owed to France and the United Kingdom, which in turn owed the United
States debts arising from the war. Money circulated in what one historian
called ‘a ridiculous cycle of indebtedness which, by its very nature, tended
towards a crash’. The crash came in  and precipitated the Great

11
David Thomson, Europe Since Napoleon (London: Penguin, ), p. . After the 
Lausanne conference had reduced German reparations payments to about one-eighth of the
former level, the British Government stopped repayments of Britain’s debt to the United
 The Global Economy 
Depression—an episode whose effects were on a scale comparable to that
of the Great War itself. Millions, particularly in the United States, lost
their jobs and their homes and possessions in the ensuing economic chaos.
States were forced off the gold standard, which was completely aban-
doned by . Currencies were allowed to float against one another with
exchange rates determined by the market, over which governments strug-
gled, largely ineffectually, to exercise some influence. Unlike the position
when exchange rates were fixed to gold and economic imbalances saw
massive outflows of gold from States, with direct effects upon internal
economic activity in States, changes in floating rates affected the external
value of the currency but allowed governments greater scope to regulate
their domestic economies, at least in the short term. Yet the system was
clearly in crisis; and the inability of the governments to cope with the
economic upheaval that followed World War One was a major cause of the
Second.
A key aim in the plans for post-war economic reconstruction was the
creation of a stable international monetary system in which States were
once more obliged to maintain more or less fixed exchange rates and to
take corrective measures to deal with economic imbalances. The dis-
cipline would be imposed by a legal framework, binding States to conform
to the mechanism, which would operate through a permanent inter-
national institution. This in itself was a significant change: in the days of
the gold standard there had been no such binding international obliga-
tions underpinning the international monetary system. The policy was
explained at Bretton Woods by United States Treasury Secretary Henry
Morgenthau:
Today the only enlightened form of national self-interest lies in international
accord. At Bretton Woods we have taken practical steps toward putting this lesson
into practice in monetary and economic fields.
...
What are the fundamental conditions under which the commerce among
nations can once more flourish?
First, there must be a reasonable stable standard of international exchange to
which all countries can adhere without sacrificing the freedom of action necessary
to meet their internal economic problems.

States. It believed that the Roosevelt administration had agreed to this, but Congress refused
to accept any such agreement so that Britain’s original repayment obligation stood. One histor-
ian noted that ‘the British had practised the unilateral repudiation of an international agree-
ment which they were to condemn so sternly when practised against them by de Valera or
Hitler’: A.J.P. Taylor, English History – (Oxford: Oxford University Press, ), pp.
–.
 International Law
This is the alternative to the desperate tactics of the past—competitive
currency depreciation, excessive tariff barriers, uneconomic barter deals, mul-
tiple currency practices, and unnecessary exchange restrictions—by which
governments vainly sought to maintain employment and uphold living standards.
In the final analysis, these tactics only succeeded in contributing to world-wide
depression and even war. The International Monetary Fund agreed upon at
Bretton Woods will help remedy this situation.
The monetary mechanism was established by the Articles of
Agreement of the International Monetary Fund drafted at Bretton
Woods. The system was based upon adjustable pegged rates or ‘par values’.
Each Member was obliged to declare a par value for its currency,
expressed in terms of gold or of the US dollar (which was itself defined in
terms of gold, initially at $ per ounce), and was then obliged to intervene
in the markets, for example by buying or selling gold or other currencies,
in order to maintain the exchange rate within a narrow (%) margin in
either side of the par value. If that value became unsustainable, and a
devaluation or revaluation of the currency was necessary in order to
correct a fundamental disequilibrium in the balance of payments, a State
could change the par value of its currency, but only after following the
prescribed procedure for consultation within the IMF.
This system operated until the late s, when economic pressures
forced the devaluation of several currencies and it became plain that the
rigidity of the existing IMF provisions on exchange rates was unsustain-
able. In  the Fund adopted the Second Amendment to its Articles of
Agreement; and when that amendment entered into force in  the legal
rules within the IMF came into line with what was already the situation in
reality and exchange rates floated freely, determined by the market. That
is not to say that government intervention in the market has ceased. Many
governments attempt to control exchange rates in order to iron out fluctu-
ations in the value of their currency or to maintain its relationship to some
other currency: but this is a matter of choice, and not of obligation as it was
under the original IMF scheme. The IMF maintains a system of surveil-
lance—monitoring and consultation—in respect of exchange rates. The
principles that it expects Members to observe were set out in a 
Decision on Surveillance over Exchange Rate Policies:
A. A member shall avoid manipulating exchange rates or the international
monetary system in order to prevent effective balance of payments adjustment or
to gain an unfair competitive advantage over other members.
B. A member should intervene in the exchange market if necessary to counter
disorderly conditions, which may be characterized inter alia by disruptive short-
term movements in the exchange value of its currency.
 The Global Economy 
C. Members should take into account in their intervention policies the interests
of other members, including those of the countries in whose currencies they inter-
vene.
The  Decision set out the surveillance procedures, which culminate
in miscreant States being invited to have ‘discussions’ with the Fund’s
Managing Director.
The IMF Articles of Agreement also address the question of exchange
control restrictions. Under Article VIII of the Fund’s Articles of
Agreement, Members are bound, subject to certain exceptions, not to
impose restrictions on the making and payment of current international
transactions (as distinct from capital transactions) without the approval of
the Fund.
States might run short of foreign currencies needed to buy imports. In
those circumstances the IMF can act as a source of international liquidity
by lending the foreign currency to the State in difficulties. At Bretton
Woods there had been a split between the scheme proposed by the British
economist John Maynard Keynes and that proposed by the United
States Treasury economist Harry Dexter White. Keynes sought a Fund
which would have the power to create liquidity by issuing a new world
currency, which Keynes would have named the Bancor, in much the way
that central banks created liquidity by issuing paper currency. Keynes
proposed that the responsibility for resolving problems of international
indebtedness should lie with both debtor and creditor nations: trade
surpluses would be taxed in order to encourage States in surplus to buy
from States in deficit. Keynes’ plan envisaged a Fund—he would have
called it the International Clearing Union—with around $ billion in
assets at its disposal. White, who thought that the prime responsibility for
restoring equilibrium should lie on debtor countries rather than on those
in surplus, proposed a more modest scheme, based on funding of around
$ billion and not reliant on the creation of a new international currency.
The IMF Articles as adopted were close to White’s conception, and the
liquidity that the IMF makes available comes from within the system
rather than by the creation and issue of a new currency.
On joining the IMF each State was assigned a quota or subscription, of
which in most cases one-quarter was to be paid in gold and three-quarters

12
Celebrated associate of the Bloomsbury group and author of the observation, of cardinal
importance to all theoreticians of macro-economics, that ‘in the long run, we are all dead’.
13
Later accused of passing secrets to the Soviet Union in a hollowed-out pumpkin, White
died of a heart attack in  shortly after testifying before the House Committee on
Un-American Activities of the US Congress.
 International Law
in its own currency. If a State needed foreign currency it could borrow
from the Fund using its drawing rights, which were calculated on the basis
of its quota. Borrowing was effected by the State ‘buying’ the foreign
currency from the Fund using its own currency. States could in practice
freely borrow within the amount of the ‘gold tranche’ of their quota; but
beyond that, and within the ‘credit tranches’ as they were known, limits
were placed on borrowing by Article V of the IMF Articles. For example,
a Member could generally borrow only up to % of its quota in any
twelve-month period, and only up to % of its quota in total, unless the
Fund waived the limitations. Members were also obliged to ‘repay’ an
IMF loan within a certain time by repurchasing their currency using gold
or other Members’ currencies.
Gold is a finite resource, and could not long meet the demands of a
growing international economy for liquidity. Nor could the United States
dollar, which was the major international trading currency and which in
the s was still convertible into gold. If more dollars were printed,
confidence that they were adequately backed by gold would inevitably fall.
On the other hand if more dollars were not added to the monetary supply
the world economy would move into a state of deflation and instability.
This dilemma had been identified by the economist Robert Triffin in his
testimony to the US Congress in , and he proposed to address the
problem by creating additional liquidity in the form of a new monetary
reserve unit. That course was followed in  when the IMF Articles of
Agreement were amended and Special Drawing Rights (SDRs) were
created. The SDR is a purely abstract conception, a unit of account, origin-
ally defined as being equivalent to . grams of fine gold, which was
then the value of one US dollar. With the collapse of the system of fixed
exchange rates, however, the method of calculating the value of an SDR
was changed. It is now calculated by adding together the values (expressed
in US dollars at prevailing exchange rates) of defined amounts of a defined
‘basket’ of currencies, which has the effect of smoothing out fluctuations
that might occur if only one currency were used as the basis. The basket
consisted in October  of €., plus . Japanese yen, plus £.,
plus US$ .; and one SDR was worth about £., US $., or €..
The shift from gold, which has intrinsic value, to the SDR may be
seen as a shift to what is a fundamentally legal basis for the international
monetary system. The system is held together by the legal definitions,
obligations, and procedures that make up the IMF system.

14
Revaluing gold was not a practical option. It would have benefited only those States that
held gold, such as the Soviet Union and South Africa, and was opposed by the United States.
 The Global Economy 
SDRs were distributed among IMF Member States in proportion to
their quotas. The liquidity of the Fund also benefited from the General
Arrangements to Borrow (GAB) set up by the Group of Ten (G-)
industrialized countries in  and regularly renewed, in order to permit
the IMF to borrow their currencies, and the New Arrangements to
Borrow adopted after the Mexican debt crisis of  by the IMF and
twenty-six Member States and institutions to make supplementary funds
available to prevent or cope with exceptional threats to the stability of the
international monetary system.
The needs of States vary and the IMF has been active in developing
loan arrangements, known as ‘facilities’, to address specific issues. For
example, there is a Compensatory Financing Facility (CFF), created in
 to help States cope with falls in export earnings or increases in the
price of imported cereals, and emergency assistance for coping with nat-
ural disasters, a Poverty Reduction and Growth Facility (PRGF) available
to low-income countries, and an Enhanced Structural Adjustment
Facility (ESAF) to assist States in making structural reforms to revitalize
their economies.
Borrowing is a good means of overcoming cash-flow problems, but it is
of little long-term benefit to poor and chronically weak economies. The
Fund has, since , joined the World Bank in the Heavily Indebted Poor
Countries (HIPC) initiative, which aims to ensure that no State has an
unmanageable burden of debt to governmental or private creditors, and
the Multilateral Debt Relief Initiative (MDRI), which provides for debt
relief of up to % on certain debts owed to the IMF, the IDA, the World
Bank’s African Development Fund (AfDF), and the Inter-American
Development Bank (IDB).
Borrowing from the IMF is subject to Fund approval, and this has been
the occasion for one of the more controversial aspects of the Fund’s oper-
ation: conditionality. There was no mention of conditionality in the original
IMF Articles, but as Keynes had noted, there was enthusiasm in the United
States for the view that the Fund ‘should exercise something of the same
grandmotherly influence and control over the central banks of member
countries, that these central banks in turn are accustomed to exercise over
the other banks within their own countries’. As I have mentioned, Fund
approval was necessary for the imposition of currency controls and borrow-
ing by Member States. This approval was far from automatic. In  the
Executive Directors of the Fund decided that Fund approval should be
conditional upon the request being consistent with Fund policies. That
involved an assessment by the Fund of the underlying economic problems
and of whether the policies the Member would pursue would be adequate to
 International Law
overcome them. The practice of making ‘stand-by arrangements’ developed,
under which the IMF gave an assurance that the Member would be
permitted to draw funds within a set period, originally six months. These
stand-by arrangements are subject to conditions for access to IMF
resources, set out in Letters of Intent drawn up by the borrowing State;
and this conditionality became a primary instrument by which the IMF
influenced economic policies in Member States.
Many delegations at Bretton Woods, including the British, had
strongly resisted giving the IMF this influence, and this opposition
explained the absence of the idea of conditionality from the original IMF
Articles. But the IMF is a pragmatic organization. It is not organized
according to the myth of sovereign equality, with each Member having an
equal vote. Votes are proportionate to quotas. At present, the United
States has , votes (the EU countries together have even more), and
Bhutan has . While most States are tolerant of rhetorical gestures in
the General Assembly and other political bodies, because words are cheap,
they have a more guarded approach when it comes to money. States that
want help from the IMF are expected to adopt sound policies; and what is
‘sound’ is determined by the economic theories that are in fashion from
time to time in the most powerful States. Conditionality accordingly came
to be seen as an instrument for the manipulation by western capitalist
States of the economies of others. A report to the US Congress in 
(the ‘Meltzer Report’) wrote that:
Transformation of the IMF into a source of long-term conditional loans has made
poorer nations increasingly dependent on the IMF and has given the IMF a
degree of influence over member countries’ policymaking that is unprecedented
for a multilateral institution. Some agreements between the IMF and its members
specify scores of required policies as conditions for continued funding. These
programs have not ensured economic progress. They have undermined national
sovereignty and often hindered the development of responsible, democratic
institutions that correct their own mistakes and respond to changes in external
conditions.
The conditionality system was put on to a formal basis in the First and
Second Amendments to the Fund’s Articles, and is the focus of much
attention. The Fund itself reviewed the operation of its conditionality
policies and issued a revised set of Guidelines on Conditionality in .
The broad policies are that Fund loans should contribute to solving the
Member’s balance of payments problem without recourse to measures
destructive of national or international prosperity, and to achieving
medium-term external viability while fostering sustainable economic
growth. It is hard to disagree with those aims; but the more detailed policies
 The Global Economy 
pursued by the IMF can be more controversial. The Fund applies a prin-
ciple of ‘parsimony’, according to which ‘program-related conditions
should be limited to the minimum necessary to achieve the goals of the
Fund-supported program, to monitor its implementation, and to imple-
ment specific provisions of the Articles of Agreement or policies adopted
under them’. Nonetheless, the Fund’s concerns can be far-reaching. It
lists a range of matters on which codes and standards have been laid down,
which it regards as material to its surveillance responsibilities and other
operations: accounting; auditing; anti-money laundering and countering
the financing of terrorism (AML/CFT); banking supervision; corporate
governance; data dissemination; fiscal transparency; insolvency and cred-
itor rights; insurance supervision; monetary and financial policy trans-
parency; payments systems; and securities regulation. The Fund also
seeks to ensure that its operations are consistent with international envir-
onmental and human rights law. Serious failures to meet standards can
result in a withdrawal of Fund support. For example, the Fund suspended
a $ million loan to Kenya in  because Kenya had failed to take
adequate steps to combat corruption. This approach is a notable example
of the indirect enforcement of international rules. The ‘corporate govern-
ance’ standards, for instance, are the OECD’s Principles of Corporate
Governance, and the AML/CFT standards are the Financial Action Task
Force’s (FATF’s) Forty Recommendations. Their adoption by the IMF is a
powerful mechanism for securing their application in States that would
probably not otherwise choose to implement them.
While much good comes from the encouragement of sensible discip-
lines and practices in States with financial difficulties, there is still strong
criticism of the IMF’s policies. In a memorable intervention in the debate,
Joseph Stiglitz wrote in , ‘I was chief economist at the World Bank
from  until last November, during the gravest global economic crisis
in a half-century. I saw how the IMF, in tandem with the U.S. Treasury
Department, responded. And I was appalled.’ His essential complaint
was that the Fund failed in its diagnoses to distinguish between different
kinds of economic problem, and persisted in administering inappropriate
remedies. That takes the subject into realms of economic policy in which
I have no expertise; but it is difficult not to think in such circumstances of
the questions of international responsibility that might arise.
Lenders and borrowers run the risk that the borrower may be unable to
repay the loan. There is, of course, always the possibility of rescheduling
loans by revising the timetable for repayments and sometimes by reducing
them. On the international plane this is a matter often handled by the
Paris Club, an informal group of nineteen governments, including the
 International Law
United States, Japan, Russia, Canada, Australia, and several European
States, that are large lenders to other States. It considers the rescheduling
of debts on a case-by-case basis, though within the framework of agreed
principles, operating by consensus, and applying conditionality in much
the same manner as the IMF. Paris Club negotiations rescheduled more
than $ billion in international debt between  and . There is an
equivalent body, the London Club, which provides a framework for the
renegotiation of debt owed to commercial lenders.
In extreme cases rescheduling cannot accommodate the economic
difficulties facing a State, and it may default on financial obligations and
fall into a situation that would be called insolvency were it to befall a
corporation. Municipal law carefully regulates insolvency so as to give
priority to certain creditors, such as employees, in access to whatever
funds the insolvent corporation may have. The corporation moves into a
form of administration which ensures that large and powerful creditors do
not seize assets or force repayment of their loans at the expense of the weak
(or those who allow the debtor more time before insisting on repayment).
There is no comparable system for States. Moreover, the problems
for States are much greater. States increasingly raise loans by issuing
government bonds rather than by entering into loan agreements with
banks or foreign States. But bonds are tradable securities, and bondhold-
ers may be both very numerous and very difficult to identify. A negotiated
variation of the loan contract, of the kind that the London and Paris
Clubs effect, may be wholly impractical, especially in the context of a
full-blown economic crisis. There is a clear need for some agreed interna-
tional mechanism to deal with these situations, and it has been the subject
of proposals within the IMF for a Sovereign Debt Rescheduling
Mechanism (SDRM). Despite the attention that is being given to this
matter, however, it is likely to be some years before any such mechanism is
agreed.
I have concentrated so far on the agreements that establish the archi-
tecture of the international monetary system. There are many other agree-
ments of cardinal importance. There are monetary unions, such as the
European Union with its Euro, the Eastern Caribbean Currency Union
with the Eastern Caribbean dollar, and the CFA Franc of the
Communauté financière d’Afrique—the eight countries of the Union
Économique et Monétaire Ouest Africaine (UEMOA). These have com-
plex rules for the co-ordination of the economic policies and the banking

15
See Rosa M. Lastra, Legal Foundations of International Monetary Stability (Oxford:
Oxford University Press, ).
 The Global Economy 
regulation and supervision systems of the participating States. There
are regional development banks, such as the European Bank for
Reconstruction and Development, the African Development Bank, the
Asian Development Bank, and the Inter-American Development Bank.
All of them invest in projects and ventures, often within the private sector,
in their respective regions. Together with the World Bank group, they are
often referred to as the Multilateral Development Banks (MDBs).
There are other institutions concerned less with lending than with the
supervision and smooth operation of the international monetary system.
The Bank for International Settlements (BIS), which is the oldest of
the international financial institutions, established in  to assist with
reparations payments following World War One, is a focus for inter-
national banking co-ordination and the development of financial stand-
ards. The Financial Action Task Force (FATF), established by the G- in
, has produced some very important guidelines and principles on
money laundering and terrorist financing which have led to significant
changes in the financial regulations of many States. A similar organization,
the Caribbean Financial Action Task Force (CFATF), has been set up to
focus on money laundering in that part of the world and its links with the
illegal narcotics trade.
There is much else that could be written about the intricate web of
international, regional, and national financial institutions which consti-
tutes the international monetary system; but now it is necessary to turn
attention to the other major component of international economic law—
the international trade system and the WTO.

.   


The adoption of the General Agreement on Tariffs and Trade (GATT),
on a provisional basis in , pending the entry into force of the proposed
International Trade Organization, has already been noted. Now it is time
to say a little more about what the GATT was and what it did.
Throughout the nineteenth and twentieth centuries, debate over inter-
national economic problems focused on trade barriers. In England the
Corn Laws were introduced by the Importation Act  in order to pro-
tect English farmers from being undermined by cheap foreign imports.
The Corn Laws in turn were opposed by the free trade movement as a

16
Strictly, the G- is the meeting of the Finance Ministers and Governors of the Central
Banks of Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States.
 International Law
protectionist measure which served only to maintain the profits of
landowners, and were eventually abolished in the face of the Irish potato
famine. Much the same debate over the desirability of protectionist laws
has been rehearsed time and time again in different States and in the
context of different industries.
There had been a network of bilateral trade treaties before the First
World War, and its effect was magnified by the widespread use of MFN
clauses which obliged each State Party to give the other treatment that was
at least as good as the treatment given to the ‘most favoured’ third State.
This relatively liberal period of international trade was brought to an end
by the Great War and the tariffs, export prohibitions, exchange controls,
and other trade restrictions that came in its wake. It is understandable that
those who in the s began the planning of a new international order,
having come through the Great Depression but still embroiled in World
War Two, should look back to the halcyon days of free trade, peace, and
prosperity.
The theory of comparative advantage asserts that overall welfare and
economic efficiency—though not necessarily economic justice—is maxi-
mized if everyone, and every State, does what they are very best at doing,
even if some States are better at everything than other States. It had
become a matter of economic orthodoxy in the non-communist world,
appearing to be a self-evident truth. Textbooks gave persuasive examples.
A man may be the only lawyer, and also the most efficient gardener, in
town; but rather than divide his time between practising law and digging
his garden it makes sense for him to practise law full-time and to pay some-
one else to dig his garden, even though the gardener he employs is less
efficient than the lawyer would have been. On the international scale, it
may be that both wheat and coffee could be grown in Canada and in
Uganda; but it is still more efficient, and more will be produced in total, if
Uganda concentrates upon growing coffee, and Canada upon growing
wheat, and they trade products.
If reality were so simple, all States would cheerfully accept free trade
and the maximized welfare that it promises. The fact that States do not do
this indicates that there is something missing from the theory.
There are a number of deficiencies in that simple theory of comparative
advantage. Protectionist measures may permit domestic industries to
thrive, which under free trade would wither in the face of cheap imports.
Imports may be opposed by the government in the public interest—for
example because it thinks it imprudent to rely upon foreign suppliers of
certain strategic goods such as staple foods, energy, or military equip-
ment, or because it wishes to nurture an infant industry as yet too weak to
 The Global Economy 
compete internationally, or because it wishes to preserve traditional
industries such as fishing in order to preserve employment and local com-
munities. There are also theoretical objections to the theory of compara-
tive advantage. In the mid nineteenth century the economist Robert
Torrens pointed out that a State could impose an ‘optimal tariff ’ and
maximize its own welfare, even though there would be an adverse effect
upon global efficiency and welfare. It is this belief that intervention in
international trade may secure real advantages for large States that pro-
vides an economic justification for their governments to move away from
the pure free trade model. In the s, for instance, tariffs were raised by
many States: the Smoot-Hawley Act raised US tariffs to their highest ever
levels in order to protect farmers. Thus, while it was always clear that the
new order for the post-war world would be based upon the principle of
free trade, there remained the critical question of the precise scope of that
principle and the manner in which it would be applied. The answers were
given in the General Agreement on Tariffs and Trade, drafted as an off-
shoot of the Bretton Woods exercise, and the initial embodiment of the
modified free trade principle.

.      

The GATT rests on a handful of clear and simple principles. The first is
that restrictions on international trade should be minimized (but not
eliminated) and should be transparent. Trade restraints must be imposed
in the form of tariffs, which must be published. Non-tariff barriers to
international trade, such as quotas and import or export licences, are in
principle not permitted to GATT Contracting States (GATT Article
XI). (The GATT was technically an agreement and not an international
organization: had it been an organization, Congressional approval would
have been needed for its adoption by the United States. Accordingly, it did
not have ‘Members’ but only Contracting Parties, who are referred to as
CONTRACTING PARTIES in uppercase font when they are acting
collectively.)
The second principle is that trade concessions are multilateralized.
That is to say, each GATT Contracting Party must apply its tariffs to all
other Contracting Parties on a Most Favoured Nation (‘MFN’) basis
(GATT Article I). This is not simply a matter of principle; it is an essential
element of the structure and development of the GATT system. It is too
difficult to negotiate tariffs bilaterally in the modern world. This is partly a
question of numbers: even in  the number of bilateral negotiations
that would have been necessary would have rendered the task practically
 International Law
unmanageable. It is also a matter of the dynamics of negotiations. If a State
looks for an equivalent concession to balance each tariff reduction that it
makes in relation to imports from another State, further reductions will
soon become impossible because the other State has run out of meaning-
ful reductions to offer: bilateral tariff reductions can only be balanced on
the basis of whatever the actual trade between the two States is, and that
trade itself may be very limited and unbalanced. But by conducting nego-
tiations collectively, among all Contracting Parties, this limitation is
avoided. States do not seek to ensure that they balance the tariff reduc-
tions with each and every other State: they offer tariff reductions as
contributions to an overall package in which State A’s concessions may be
met by little or nothing in return from State B, but any such detriment or
imbalance is corrected by the aggregate of benefits that State A receives
from States C, D, and so on. This makes it much easier to negotiate
substantial tariff reductions.
Negotiations proceed between the main producing and consuming
nations, and concessions are then extended to all by the operation of the
MFN clause. This is a good example of the role of international law in the
international trading system. It is the legal articulation, definition, and
application of the MFN principle that underpins and gives precision to
what might otherwise be a rather vague international understanding. The
GATT CONTRACTING PARTIES have met in a series of negotiating
‘rounds’, in which tariff concessions and other trade restraints were
agreed. The tariff concessions are incorporated in Schedules which are
annexed to the GATT and which are binding on the State making them.
Tariff ‘bindings’, as they are known, were the heart of the original
GATT negotiations. At the end of the Uruguay Round, which lasted
from  to , developed countries had bound % (measured in
terms of the number of different kinds of goods, as fixed by internationally
agreed customs classifications) of the goods in which they trade, develop-
ing countries had bound %, and ‘transition economies’ (that is, coun-
tries in the process of transformation from centrally-planned into market
economies) had bound %. Those figures should be compared with the
situation prior to the opening of the Uruguay Round, when the respective
percentages were %, %, and %.
The third principle underlying the GATT is that once goods are admit-
ted to a State they must be treated in the same way as ‘like domestic prod-
ucts’ (GATT Article III). Internal taxes and regulations within a State may
not discriminate between imports and like domestic products. Much
energy is devoted to determining whether products are alike. Are strong
beer and weak wine ‘like products’? Are cheap brandy and expensive luxury
 The Global Economy 
brandy ‘like products’? Are cars with a high petrol consumption and cars
with low petrol consumption ‘like products’, and does it matter if the former
are largely imported and the latter are largely domestically produced, so that
any differential taxation would favour domestic producers? These are not
purely technical questions of classification. They implicate the basic rights
of a State to use tax and trade measures as ways of achieving social object-
ives. States are not entitled to maintain discriminatory taxes in breach of
GATT Article III; and as I shall explain, the WTO operates an effective dis-
pute settlement system to address allegations of breach.
This picture of a non-discriminatory free trade system may sound too
good to be true; and it is. The commitments were not total. According to
the Protocol of Provisional Application, by virtue of which the GATT was
applied ‘provisionally’ (pending the entry into force of the Havana
Charter), Contracting Parties were obliged to apply GATT Part II, which
dealt with matters such as internal taxation, dumping, and quantitative
restrictions on trade, only ‘to the fullest extent not inconsistent with exist-
ing legislation’. Existing discriminatory laws were thus ‘grandfathered’ in
the original GATT.
There were also very extensive exceptions to those obligations that were
established in the GATT. The exceptions were of various kinds. As might
be expected, GATT CONTRACTING PARTIES were entitled to
impose import and export controls for reasons of public welfare (Article
XX). These provisions have featured prominently in disputes over import
restrictions that States have taken ostensibly for environmental reasons
(such as the Tuna and Shrimp cases against the United States); but the
exceptions have been interpreted carefully, so as to ensure that environ-
mental measures do not become disguised restrictions on trade. GATT
also permits trade controls for security reasons (Article XXI), so that
export bans on computers and armaments, for example, may be permissi-
ble. GATT Article XXIV accommodated political realities by permitting
the establishment and operation of customs unions and free trade areas,
such as Benelux, within which free trade would operate between the
Members, which would maintain a common trade frontier towards third
States. Article XXXV permitted States to oppose the entry into force of
the GATT vis-à-vis any other State. That provision has been used by more
than sixty States for various reasons, including the opposition of India and
Pakistan to trade relations with apartheid-era South Africa, and the use of
Article XXXV by many States for commercial reasons against Japan on its
accession to the GATT in .
Three major exceptions were contained in GATT Articles XII, XIX,
and XXV. Article XII permitted the imposition of import quotas in order
 International Law
to safeguard the State’s balance of payments—a necessary concession
when the GATT was drafted, because fixed exchange rates still prevailed
under the IMF scheme. Article XIX, sometimes called the ‘safeguards
clause’ or ‘escape clause’, permitted controls to choke off unforeseen
import surges that threatened serious injury to domestic industries
producing like products. In practice, Article XIX measures were rarely
taken, States preferring to resort to what were known as ‘grey area’ meas-
ures, notably Voluntary Export Restraints (VERs—also known as
Voluntary Restraint Agreements or VRAs) which were estimated to be
around ten times as numerous as Article XIX measures. Under VERs, the
exporting State would voluntarily restrict its exports of certain products
at the request of an importing State troubled by the effect of the imports
upon its economy. The best known were the VERs on Japanese steel
and automobile exports to the United States, which endured for many
years, and the Multifibre Agreement (MFA), which applied to about
% of world textile exports and provided for quotas on textile imports
into developed States from developing States (though not from other
developed States). More generally, GATT Article XXV. permitted a
two-thirds (now three-fourths) majority of the CONTRACTING PAR-
TIES to waive any GATT obligation, and this provision was used on
many occasions in order to permit preferential treatment for trade with
certain States, and particularly developing countries (although the
United States benefited from a very wide waiver in  regarding agri-
cultural products).
Other exceptions were narrower. Article I of the GATT permitted, as
an exception to the MFN principle, the maintenance of existing prefer-
ences, such as the ‘Imperial Preferences’ under which imports from the
British Dominions and colonies were admitted to the United Kingdom on
special terms—a concession for which the United Kingdom had fought
hard. Article XI. permitted the maintenance of quantitative restrictions
on trade in agricultural products, and Article XVI permitted subsidies for
exported primary products, including agricultural goods. These provi-
sions, which gave a measure of protection to strong agricultural interests
in developed States, set the stage for much criticism of the GATT and the
international trade order. While there is widespread agreement that agri-
cultural protectionism is expensive and inefficient and seriously distorts
trade patterns, it must not be thought that abolishing the GATT excep-
tions that permit this protectionism would be an unequivocal benefit to
developing States. If protectionist measures were abolished, for example,
prices would rise. One might think that this would enable developing
States to increase their exports: but Africa has become a net importer of
 The Global Economy 
food, and if the liberalization of trade in agriculture is considered in
isolation, Africa might come out worse than it is under the existing rules.
While these exceptions may appear as no more than concessions to vested
interests of developed States, they established the principle of differential
treatment within the structure of the GATT and thus facilitated the
amendment of the GATT to accommodate the particular needs of develop-
ing States. This move was heavily influenced by the proponents of the ‘New
International Economic Order’, who argued that the fact that all States
were treated equally did not mean that they were being treated fairly. The
need for some modification to the terms of the GATT had been recognized
in , in the Haberler Report. The decisive movement occurred  to
, when the UN Conference on Trade and Development (UNCTAD)
drafted a new Part IV (Trade and Development) of the GATT, providing
for non-reciprocal ‘special and differential treatment’ for developing States.
(Such States are actually called ‘less-developed States’ in GATT Part IV, in
accordance with the then-prevailing orthodoxy. There is no WTO defin-
ition of a ‘developing State’. Each Member decides for itself whether it is
‘developing’ or ‘developed’). Part IV acknowledged the need for ‘positive
efforts designed to ensure that less-developed Contracting Parties secure a
share in the growth in international trade commensurate with the needs of
their economic development’; and developed Contracting Parties under-
took ‘to accord high priority to the reduction and elimination of barriers’ to
trade in products of particular interest to developing States. Part IV
accepted that there was a problem, even if it did little to address it. More
concrete steps were taken in the form of Article XXV. waivers, and in par-
ticular in the two waivers given in  which permitted the creation of the
generalized system of preferences for developing States (GSP) and tariff
preferences on trade between developing countries, as exceptions to the
general MFN obligation. The two  waivers were put on a permanent

17
See the African Union’s  Declaration on Agriculture and Food Security in Africa,
<http://www.africa-union.org/root/au/Documents/Decisions/hog/HoGAssembly.
pdf>.
18
See M. Bedjaoui, Towards a New International Economic Order (New York: Holmes &
Meier, ), and M. Benchikh, Droit international du sous-développement (Paris: Berger-
Levrault, ) for trenchant analyses of the position of developing States in international law.
19
The World Bank does have such a definition. Countries with a gross national income
(GNI) of $ or less in  were classified as low-income economies, those with a GNI per
capita of $–$, as lower-middle-income economies, those with a GNI of $,–$,
as upper-middle-income economies, and those with a GNI of over $, as high-income
economies. See <http://devdata.worldbank.org/wdi/contents/Usersguide.htm>.
20
Article XXXVI.. Not, it will be noted, a ‘share in international trade commensurate
with the needs of their economic development’.
 International Law
basis in  in a Decision of the CONTRACTING PARTIES known as
the ‘Enabling Clause’.
The GATT system as described above functioned for around a quarter
of a century, but the system needed to be developed to meet the demands
of the major trading nations. As tariffs were progressively reduced, the
relative importance of non-tariff barriers to trade (NTBs) increased,
and became a focus of concern. NTBs included matters such as technical
standards (the need for different plugs and voltages on electrical equip-
ment in different countries is an example), and government subsidies,
against which imports might be unable to compete. During the Tokyo
Round negotiations ( to )  supplementary agreements were
concluded, dealing with non-tariff barriers such as technical barriers to
trade, dumping, subsidies and government procurement, and with other
matters such as safeguard measures, dispute settlement, and Differential
and More Favourable Treatment for developing countries. These were
known as the plurilateral agreements or codes, because there was no
obligation for all GATT CONTRACTING PARTIES to accept them:
participation varied from agreement to agreement—GATT à la carte.
The Tokyo Round Codes paved the way for the ambitious negotiations
in the Uruguay Round ( to ). Those negotiations made a funda-
mental shift in the focus of the GATT Contracting Parties, moving
beyond concern with trade in goods to bring in the ‘new areas’ such as
intellectual property rights, investment, trade in services, and the linkages
between trade and environmental concerns. The discussions were diffi-
cult and protracted but—somewhat surprisingly—they succeeded.
Indeed, they not only added very significantly to the basic GATT frame-
work, they produced a complete overhaul of the system; for it was from
the Uruguay Round that the World Trade Organization (WTO) sprang
into existence in  and rapidly achieved near-global acceptance. In
 it had about  members, including almost all the major trading
States. China acceded in ; and negotiations on the terms of Russia’s
accession began in , the lengthy discussions consisting of detailed
examination of the compatibility of Russia’s laws and practices with the
whole range of WTO rules to which it would accede.
The WTO is a real international organization: no longer is inter-
national trade organized under the aegis of the provisional and incorpor-
eal GATT. The continuity between the WTO and the GATT, however, is
very plain. Indeed, the  Marrakesh Agreement establishing the WTO
is remarkably short: under a dozen pages. The last page, however, is a list
of annexes, and it is here that the real work is done. Thus, the first annex is
the General Agreement on Tariffs and Trade, . That consists of the
 The Global Economy 
 GATT ‘as rectified, amended or modified by the terms of legal
instruments which have entered into force before the date of entry into
force of the WTO Agreement’—what European Community lawyers
would call the GATT plus the acquis. Then there is a list of Agreements.
Those relating to trade in goods include the agreements on sanitary and
phytosanitary measures (the SPS Agreement), on textiles (superseding
the MFA), technical barriers to trade (the TBT Agreement), trade-related
investment measures (the TRIMS Agreement, which addresses matters
such as requirements that goods produced in a State must have a certain
proportion of local components), subsidies and countervailing measures
(the SCM Agreement), and on safeguards. In addition, there is the
General Agreement on Trade in Services (GATS), and the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS). There is
also the Understanding on Rules and Procedures Governing the
Settlement of Disputes (the Dispute Settlement Understanding or DSU)
and the Trade Policy Review Mechanism (TPRM). All WTO Parties are
obliged to accept the foregoing agreements. The list of annexes closes with
four plurilateral trade agreements, whose acceptance is not mandatory, on
trade in civil aircraft, government procurement, dairy products, and
bovine meat.
These agreements revise and consolidate the work of the Tokyo Round,
and provide a much broader legal framework for trade regulation than has
previously existed on a global scale. The GATS, for instance, regulates the
very important services sector and, like the GATT before it, regulates
both access to markets and the treatment of service providers once they
have been admitted to foreign markets. It covers four ‘modes of supply’ of
services: cross-border supply, such as international telephone services;
consumption abroad, as when tourists travel to foreign destinations; com-
mercial presence, for example when a law firm establishes a foreign office;
and movement of natural persons, where an individual travels to work
abroad. In principle (derogations are permitted for what should ordinar-
ily be a maximum of ten years), services are subject to the MFN obliga-
tion; but beyond this governments have an almost unlimited right to
choose what commitments they assume under the GATS. They may, for
example, make commitments only in respect of certain sectors and certain
modes of supply; and within those areas they may stipulate what degree of
market access and national treatment they undertake to provide. Like the
GATT, the intention is that trade should become progressively liberalized
as States negotiate more and more commitments—or, to put it another
way, as they progressively remove barriers to the international trade in
services. The GATS does permit the withdrawal of commitments after
 International Law
three years, but the expectation is that the overall trend will be towards
greater liberalization. The GATS itself has a series of annexes dealing
with particular sectors, including financial services and telecommunica-
tions; and work is proceeding on detailed regulation in other sectors such
as maritime transportation.
Much of the regulation under the WTO is highly technical in nature,
but there are nonetheless great issues of principle being worked out, par-
ticularly through the work of the WTO panels and the WTO Appellate
Body, which decide disputes concerning the interpretation of application
of the ‘covered agreements’—that is, WTO Agreement and its associated
Agreements—which cannot be settled by the consultation procedure
provided for in the DSU. Two controversial areas stand out. One is the
question of the standards of review of governmental action. If the govern-
ment of a Contracting Party decides that a particular measure, such as a
ban on the sale or importation of a product, is necessary on health
grounds, how should a WTO panel approach the task of reviewing the
decision? This is a task comparable to the review of governmental action
under human rights instruments, and is generating a rich jurisprudence
on concepts such as proportionality and legitimate expectations. The sec-
ond is the range of ‘trade and . . .’ topics, such as trade and human rights,
and in particular the question of trade and the environment. The striking
of a balance between trade restraints legitimately imposed for environ-
mental reasons and restraints ostensibly adopted for environmental rea-
sons but causing an unnecessary or unacceptable restriction on the basic
trade rights under the WTO is a matter of great delicacy and importance.
Of course, even these issues involve much technical WTO law; but here
one finds much good lawyer’s law. For example, there are very close paral-
lels between the notion of ‘like products’, which underpins all of the
WTO prohibitions on discrimination, and the notion of substitutable
products in competition law; and as this youthful body of international
law develops one sees it being knitted into the broader fabric of longer-
established areas of the law—although some fear that the special charac-
teristics of areas such as international trade law are leading to a degree of
fragmentation in international law.
Trade law is a fast-moving area, in part because of the WTO provisions
on dispute settlement. These represent a major improvement on proced-
ures under the  GATT, which required a consensus (including the
Respondent) in favour of action. The WTO Dispute Settlement
Understanding provides that if the obligatory consultations between

21
The ILC is studying the question of fragmentation in international law.
 The Global Economy 
disputing parties fail to resolve a dispute, a complaining party has a right
to require the establishment of a dispute settlement panel composed of
three or five independent experts chosen in consultation with the parties
to the dispute. The panel’s report is adopted unless there is either a con-
sensus of WTO Contracting Parties against adoption, or the report is
successfully appealed to the WTO’s Appellate Body. If an adopted report
finds a violation of WTO obligations, the offending State is obliged to
bring the measures in question into line with those obligations and to
implement whatever remedial measures the panel (or Appellate Body)
proposes. If it fails to do so within a reasonable time, the complaining
party may seek the authorization of the Dispute Settlement Body to take
countermeasures by suspending concessions equivalent in amount to the
level of the violation. The presumption in favour of the establishment of
dispute panels and the adoption of their reports has made the WTO DSU
an effective and popular mechanism. By ,  disputes had been
referred to the mechanism.
In fact, the dispute settlement procedure does not depend upon the con-
cept of a violation of WTO rules. As GATT Article XXIII makes plain, a
complaint may, indeed, be made that another Party has violated a WTO
agreement; but a Party may also make a ‘non-violation complaint’, that is, a
complaint that a benefit that it expected to receive under a WTO agreement
is being nullified or impaired by a measure taken by another Party, whether
or not that measure violates a WTO rule. For example, in the EC–Oilseeds
case the United States complained that the benefit of EC tariff concessions
on oilseed imports had been nullified and impaired by EC subsidies payable
to processors in respect of purchases of EC-produced oilseeds but not
payable with respect to purchases of the imported like product. The panel
found that the subsidy was both a violation of GATT Article III. and an
impairment of the benefit expected under the tariff concessions. There is a
third category of action, similar to the non-violation complaint: the ‘situ-
ation complaint’. This was intended to cover circumstances where expected
benefits were nullified or impaired by a macroeconomic emergency, such as
a general economic depression or a collapse in the price of a commodity; but
the provision has not been used in practice. The distinction between viola-
tion complaints and non-violation complaints is one of the characteristics of
the WTO dispute settlement procedures, and is a subtle mechanism for
aligning those procedures with the economic realities of concern to WTO
Contracting Parties.
The WTO continues to act as a key forum for international economic
debate and negotiation. In  a WTO Ministerial Conference in
Seattle was intended to have launched a new round of negotiations, but
 International Law
the conference was disrupted by thousands of protesters. The protests
were directed at a number of targets: globalization; capitalism; the demo-
cratic deficit in the WTO; and more generally, the perception that the
WTO and the government representatives attending the meeting were
not doing enough to address issues of global poverty and deprivation.
The Battle of Seattle captured the spirit of the times, and was followed by
many similar protests and movements aiming at the End of Poverty. The
protests reinforced the position of those who saw global poverty as
the most pressing international problem. The resumed session convened
in  in Doha, and the Doha Round came to be perceived as the
Development Round.
The Doha Declaration of  identified a range of topics for negotiation,
many of them clustering around the issues of implementation of WTO
rules by developing States and the role of international trade in ‘the pro-
motion of economic development and the alleviation of poverty’. While
ending global poverty might have been a latent goal, attention was focused
on more proximate targets. The phasing out of developed States’ agricul-
tural subsidies is the key issue. Developing countries were also greatly
concerned by issues such as the effect of the protections afforded to intel-
lectual property rights of pharmaceuticals under the TRIPS Agreement
upon their ability to procure medicines to combat AIDS and other dis-
eases. The Doha ‘Declaration on the TRIPS agreement and public health’
addresses that question. In it the WTO Ministers affirmed the right of
States to grant compulsory patent licences and asserted that:
We agree that the TRIPS Agreement does not and should not prevent members
from taking measures to protect public health. Accordingly, while reiterating our
commitment to the TRIPS Agreement, we affirm that the Agreement can and
should be interpreted and implemented in a manner supportive of WTO mem-
bers’ right to protect public health and, in particular, to promote access to medi-
cines for all.
International economic law has entered a new phase. Governments
have an increasingly clear and sophisticated view of the social and political
implications of even the most abstruse technical rules. Much of the credit
for that development rests with the remarkable generation of lawyers who,
during the past twenty or thirty years, have developed real expertise in dif-
ficult areas of the law that were practically unknown to their predecessors;
and it is one aim of this short book to encourage others to follow them.

22
The title of a widely read book by Jeffrey Sachs (The End of Poverty, How we can make it
happen in our lifetime (London: Penguin, )).
 The Global Economy 

.   


Artificial barriers to international trade can be removed: basic laws of
economic behaviour cannot. Prices for primary products can fluctuate
widely. Demand for tin may fall as aluminium cans supplant cans made
from tin-plated steel; supplies of wheat may fall because of poor weather:
and prices may fall or rise accordingly. Such fluctuations may of course
harm individual producers and consumers, by leaving them with less
money. But the fluctuations also have a seriously disruptive macroeco-
nomic effect. They impede long-term planning and investment by States
and by corporations engaged in the associated trades, which cannot
predict their income in future years. Mechanisms that can reduce price
fluctuations materially help planning and economic development.
The best-known such mechanism is the Organization of the Petroleum
Exporting Countries (OPEC). Established in , OPEC was originally
designed by its Member States to counteract the economic power of the
‘seven sisters’, the oligopoly of international oil companies that domi-
nated the international oil market. Recognition of the interdependence of
international economies, and of the seriousness of the crises that inter-
ruptions of energy supplies might trigger, led OPEC to assume a crucial
role in stabilizing the oil market, so helping oil producing States to main-
tain a reasonable rate of return on their investments and ensuring that the
supply of oil to consumers is reasonably predictable. Whether it can main-
tain that stabilizing role, now that production from non-OPEC countries
such as Russia have expanded, is open to considerable doubt.
OPEC is a producer cartel; but broader-based mechanisms have been
devised for other commodities. The International Tin Council (ITC)
is the most notorious. It was established in the s and operated under
a series of International Tin Agreements, which sought to stabilize prices
within agreed limits through the maintenance of a buffer stock. Tin
was sold from the stock when prices rose above a certain level, and bought
into the stock when prices fell below a lower intervention level. The
ITC was permitted to borrow money for the purposes of buffer stock
operations, and to settle export quotas for producer States. Clearly, the
system is sustainable over the long term only if the upper and lower inter-
vention prices are fixed so as to be in line with long-term supply and
demand. The constitution of the ITC facilitated this strategy: it was
composed of producer and consumer States. The votes within the group
of producer States were allocated on the basis of each State’s share of
 International Law
world tin production, and the group of consumer countries had an equal
number of votes, apportioned on the basis of their share of consumption.
Decisions required a majority within each of the two groups. Thus,
neither producers nor consumers alone could control the organization,
but the largest producers and consumers together could do so.
Unfortunately, the ITC tried to maintain prices at a level that was unsus-
tainable in the face of falling demand for tin and it became insolvent
in , sparking off a round of litigation over the responsibilities of
ITC Member States for the many millions of pounds that the Council
owed.
Other commodity agreements have survived, if only by adopting a less
ambitious strategy. The International Coffee Organization (ICO), which
is also organized on the basis of parity between the group of producers and
the group of consumers, has since  promoted the development of a
stable market for coffee, and is increasingly active in the promotion of sus-
tainable development and of diversification on the part of producers. Over
the years it has introduced and abandoned quota mechanisms to influence
prices, in the light of the prevailing market conditions. The International
Cocoa Organization (ICCO) performs a similar function, but has not
operated a pricing mechanism for many years. There are other, similar,
organizations operating, in relation to sugar and tropical timber for
instance. But the days of market regulation and buffer stocks appear to
have passed. The International Natural Rubber Organization (INRO) was
probably the last international commodity organization to operate a buffer
stock, and it was agreed in  to wind up that stock. The difficulties in
maintaining economic mechanisms flowed from several factors, including
market instability, limited support for the organization from States, and
disagreements over pricing policies and the division of the benefits that
higher prices might bring. While there had been willingness to assist in the
operation of market mechanisms—the IMF, for example, created a Buffer
Stocks Financing Facility in , and a Common Fund for Commodities
was established in  for various purposes including the financing of
buffer stocks—the emphasis now is firmly on working within market dis-
ciplines to promote sustainable development and stability in relation to
commodity markets.

23
Among the related cases see J H Rayner (Mincing Lane) Ltd v Department of Trade and
Industry []  AC .
24
See the list of organizations at <http://r.unctad.org/commodities/partners.htm>.
 The Global Economy 
The International Grains Council (IGC) exemplifies this approach.
After the Great Depression of the s there were several attempts to
conclude an international wheat agreement which would secure supplies
and support prices. Like other commodity agreements, the mechanisms
for intervening in the wheat market were not wholly successful. The
emphasis was shifted to transparency, market information, and technical
assistance as means of adjusting to changing market conditions. More
significantly the IGC, which again is composed of both producer and
consumer States, administers two conventions: the  Grains Trade
Convention (GTC) and the  Food Aid Convention (FAC). The for-
mer is concerned with the monitoring and development of markets in
grains, and the latter with securing a predictable system of international
food aid. Between the two conventions, the IGC is concerned both with
grain as a tradable commodity and resource, and as a social necessity for
feeding the world’s population. One hesitates to refer to a holistic
approach to commodities; but the IGC is moving in that direction.
One final group of agreements that falls under this broad heading is that
concerned with energy supplies. Though OPEC continues its work in the
oil sector, there is no comparable organization regulating the market in coal,
gas, or nuclear power. There are, however, organizations concerned with
ancillary aspects of energy supply. The International Energy Agency (IEA)
was established during the  to  oil crisis, initially to co-ordinate
emergency responses between the member States to energy shortages. It
now has a broader responsibility for the formulation of energy policy and
the development of sustainable energy strategies, and it is playing a signifi-
cant role in the response to the problems of climate change. The Energy
Charter Treaty and its secretariat were established in the s to promote
energy co-operation among the Eurasian States—essentially, to find ways of
obtaining secure supplies of energy for western Europe from the east
(though the members now include Australia and Japan). The Energy
Charter Treaty has a particular importance in underpinning and providing
legal protection for the extensive investments that have been made in the
energy sector since the s. Finally, and of particular importance for
those who doubt the ability of the wind turbine to power the world economy,
the International Atomic Energy Agency (IAEA) provides the one global
mechanism for the monitoring and verification of uses of nuclear power.
More familiar during the crises over real or imagined nuclear weapons
programmes in Iraq, Pakistan, and North Korea as a pawn in Great Power
politics, the IAEA has a crucial role in ensuring that the energy needs of the
future can be met safely.
 International Law

.  


I have concentrated up to this point upon global regimes; but there is
much, and often more visible, activity on a regional level. Regional
economic integration agreements, in particular, are often expressions of a
regional solidarity that extends well beyond the purely economic sphere.
The European Union is the obvious and most highly developed
instance. There are three elements or ‘pillars’ in the Union. The first is the
European Community, which secures economic integration and also
addresses social and environmental issues. This aspect has been the key-
stone of European integration since the European Economic Community
(EEC) was established in , to sit alongside the European Coal and
Steel Community (ECSC) and the European Atomic Energy Community
(EAEC). (The institutions of those three bodies were merged in .)
The other two pillars of the Union are the Common Foreign and Security
Policy, which seeks to foster common positions among the Member States
on foreign relations and military matters, and the Police and Judicial
Co-operation in Criminal Matters pillar. In addition to the Council,
which consists of representatives of the Member States, the Union has a
Parliament, with more extensive powers of irritation than of legislation,
and a Court of Auditors which, by , had refused for eleven consecu-
tive years to sign off the Community’s accounts. Above all, the
Community has an unelected Commission which plays the central role in
the formulation and implementation of Community policy and exercises
enormous power. The European Community is a party to many inter-
national agreements and often attends conferences alongside Member
States, causing some concern that the European States are over-
represented—a view based largely upon the misconception that the
interests of the Commission, which represents the Community, and the
Member States are necessarily the same.
The European Community is unusual in combining the elements of a
customs union, within which goods and services may in principle move
freely, with more far-reaching provisions guaranteeing freedom of move-
ment for workers and capital, and a single currency, the Euro, which has
been adopted by about half of the Member States. There is a remarkable
degree of harmonization of laws and supranational legislation, which aim
to create a single market within the Union, producing something close to
a federation of Member States. Other regional organizations have, as yet,
more confined functions; but several of them have ambitious programmes
of regional integration.
 The Global Economy 
In West Africa the fifteen Member States of the Economic Community
of West African States (ECOWAS), founded in , revised the
ECOWAS Treaty in  so as to introduce significant supranational
elements. It is complemented by the Union économique et monétaire
ouest-africaine (UEMOA), and by the Banque Centrale des Etats de
l’Afrique de l’Ouest (BCEAO). While the primary purpose of ECOWAS
is to ‘promote co-operation and integration, leading to the establishment
of an economic union in West Africa’, it also makes a very significant
contribution to regional peacekeeping and security. For instance, it estab-
lished an armed observer group, the Economic Community Cease-Fire
Monitoring Group (ECOMOG), in  to monitor and stabilize the
situation in the midst of the civil war in Liberia. The Common Market for
Eastern and Southern Africa (COMESA), which replaced the preferen-
tial trade area that had been established in , also has supranational
elements modelled on those in the European Community treaty. It has a
supranational Court, based in Khartoum, now delivering judgments. The
Southern African Development Community (SADC) is pressing ahead
with a programme of integration, but the East African Community (EAC)
and Union du Maghreb Arabe (UMA) have moved less far along the road
of economic integration.
In the Americas there are some highly developed organizations. The
North American Free Trade Agreement, (NAFTA), made by Canada,
Mexico, and the United States in  and in force since , is a
complex and detailed legal framework for trade and investment between
the three States. In the south, the Mercado Común del Sur (MERCO-
SUR—Southern Common Market), established in  by Argentina,
Brazil, Paraguay, and Uruguay and joined in  by Venezuela, is simi-
larly a highly developed organization. It has adopted a series of codes and
protocols on various aspects of business regulation, investment protec-
tion, and dispute settlement. There are several other international
economic organizations in Latin America. The Caribbean Community
(CARICOM) and the Andean Community (CAN) are the most promin-
ent; but others such as the Sistema de la Integración Centroamericana
(SICA) and the Sistema Económico Latinoamericano y del Caribe
(SELA) are active in promoting regional and subregional integration. An
ambitious plan to create a Free Trade Area of the Americas (FTAA), which
would embrace thirty-four American States from Canada and the United
States, through the Caribbean and central America, down to Chile and
Argentina, encountered opposition from trade unions, NGOs and other
groups, and failed to achieve the  target date for adoption. The plan
appears to have been effectively abandoned in .
 International Law
Economic integration is also proceeding in other regions. There is a
Gulf Co-operation Council (GCC) in the Middle East, which promotes
regional co-ordination and integration across a wide range of economic
and cultural fields. The Association of Southeast Asian Nations
(ASEAN), has a similarly broad remit, as does the Pacific Islands Forum;
while the South Asian Association for Regional Cooperation (SAARC)
co-ordinates economic and developmental policies among its Member
States. The Asia-Pacific Economic Cooperation (APEC) is working to
achieve free and open trade and investment in the Asia-Pacific region by
 for developed economies and  for developing economies; and
the Asian Development Bank (ADB) plays an active role in promoting
economic co-operation in the region.

.  

Short as this survey of international economic law has been it has, I hope,
given a sense not only of the considerable international activity in this field
but also of the extent to which international economic relations are
becoming rule-based rather than power-based. The world is closer than is
widely recognized to a situation in which States can sue each other for
economic injuries inflicted upon them. Among Nicaragua’s complaints in
its International Court case against the United States in  was the
interruption of its trade. Nauru, in , complained to the Court about
the mismanagement of its economy while it was under Australian admin-
istration. Cases were launched under Bilateral Investment Treaties
against Russia and Argentina for losses suffered by foreign investors
during the financial crises in those two States. And there are scores of cases
being pursued through the WTO dispute settlement mechanism. There
are many opportunities for claims to be based on the ways in which States
manage economic crises; and there are many cases exploiting those oppor-
tunities.
While there is no doubt a significant degree of overlap and consequent
inefficiency among international organizations, as there is in every sphere
of human activity, this development is, by and large, a good thing. As
I noted at the beginning of this chapter, quoting one of the more lucid
analyses in recent British foreign policy, ‘where there are no rules, the rich
and powerful bully the poor and the powerless’. But it is not only a matter
of economic justice—indeed, it is in large part not a matter of economic
justice at all. The international rules are best seen not as largely ineffectual
 The Global Economy 
attempts to produce a fairer world, but rather as reasonably successful
attempts to lubricate the wheels of international trade and the inter-
national economy. Their success is not that they make things fairer, but
that they make things easier. It remains a matter for the governments of
the world, and their citizens, to use the available mechanisms to make the
world a fairer place.
 

The Global Environment

.    

  
There are two main models of legal relationship. In the first, someone
injured by the wrongdoing of another sues the other. In the second, action
is taken by a representative of the society against the wrongdoer in the
public interest. These are the paradigms of private and public law, exem-
plified by civil and criminal law respectively, within national legal systems.
They depend upon the ability to identify a wrongdoer and a victim or a
representative of the public interest. But the paradigms cannot always
easily be sustained within the international legal system; and there is no
better example of this than the difficulties that arise in environmental law.
Take, for instance, the case of global warming. Greenhouse gases
include carbon dioxide, methane, and nitrous oxide, and also some of the
gases that have been used in refrigerators and aerosols as substitutes for
the chlorofluorocarbons (CFCs) that are an acknowledged cause of harm
to the ozone layer. Greenhouse gases are a cause of global warming. But
whose emissions of greenhouse gases cause global warming? If a complaint
is made that the United States or the United Kingdom is failing to prevent
emissions from its territory, the allegedly wrongdoing State may respond
that it is not the emissions from its own territory but those from other
States that cause global pollution, or that the State’s own emissions are no
more than a tiny fraction of greenhouse gases released around the world.
So who should be sued? May the action be brought against any polluting
State, and if so is each polluter liable for all damage caused by global
warming or only for its proportionate share of pollution? And how would
such a proportionate share be calculated if, for example, some States that
are now relatively light polluters have a long history of heavy pollution,
while some of today’s heavy polluters have no such history? And what of
States that may emit pollutants but which have natural or man-made car-
bon sinks, such as extensive forests, which absorb more carbon dioxide
than the State emits?
Similar problems arise when the position of possible claimants is
considered. Must a claimant prove that it has actually been injured by
 The Global Environment 
global warming caused directly by a particular named respondent, or is it
enough that the harm is caused by global warming in general? Indeed, is it
really necessary that an actual injury be shown, or may a claimant such as
the Maldives (average height above sea level, approximately one metre;
highest point, Wilingili island, . metres above sea level) say that if it is to
survive the impact of melting polar ice and rising sea levels it cannot afford
to wait for actual injury to be sustained? And what if no injured or poten-
tially injured State chooses to pursue an international claim concerning
massive environmental pollution; must the pollution go unchecked, or may
some other State, itself unaffected by the pollution, pursue the matter?
Both sets of problems arise from the same basic cause: the diffusion of
injury and of responsibility among large numbers of potential claimants
and respondents. In domestic contexts such situations are typically
addressed through taxation. Communications, defence, education, and
health care and similar public goods, which many people need occasion-
ally or in small measure but which are too expensive for individuals to buy,
are centrally procured and the cost spread widely among potential benefi-
ciaries. On the international plane, however, there is no body with the
authority to impose global taxes—or, indeed, to represent the global pub-
lic interest in litigation over environmental pollution.
Environmental regulation frequently involves difficult, and sometimes
very controversial, questions of science; and those usually concern the
predicted, rather than the past, consequences of State action. This, too,
causes problems. Whose opinion on the science is to be accepted? Is each
State entitled to take its own view? Is it, like a criminal trial, not a matter of
finding authoritative results but of devising satisfactory processes, so that
a State that has put in place a formal procedure for considering scientific
questions such as the environmental impact of a proposed industrial
development would be said to have satisfied its international obligations
even if its advisers reached a view on scientific questions that subse-
quently proves to be wrong?
Given these complications it is not surprising that international
environmental law was slow to develop. Environmental lawyers some-
times claim early cases, such as the Behring Sea Fur Seal arbitration in
, as early stirrings of the subject. The Fur Seal case arose when the
United States, having purchased Alaska from Russia in , granted to
the Alaska Commercial Company monopoly rights to take the fur seals.
The value of the monopoly was greatly reduced by Canadian fishermen
taking the seals on the high seas outside United States waters, with the
result that the herds that congregated annually on land in Alaska became
severely depleted. The United States and Great Britain (as the State
responsible for Canada’s actions at that time) agreed to take the matter to
 International Law
arbitration. The United States claimed to be acting not merely in order to
protect the United States fisherfolk, but as trustees ‘for the benefit of
mankind’ in managing the seal stock. Although the United States claim
was rejected by the Tribunal, which upheld the right of all States to take
fish on the high seas, the pleadings in the case do foreshadow some of the
bold arguments that were being deployed by environmentalists for a full
century.
The finding of the Behring Sea Fur Seal tribunal that the United States
had no right to regulate high seas fisheries unilaterally had been antici-
pated by the United States and Great Britain in the treaty by which they
established the tribunal. That treaty stipulated that if the arbitrators
found that ‘the concurrence of Great Britain is necessary to the establish-
ment of Regulations for the proper protection and preservation of the
fur-seal in, or habitually resorting to, the Behring Sea’, the arbitrators
should themselves draft the necessary regulations; and this they did.
These regulations also anticipated some of the devices used in later
environmental instruments. They created a sixty-mile zone around the
Pribilov Islands in which sealing was banned, and a larger zone in which
the ban applied only at certain times of the year. Sealing vessels were
required to be licensed, but none of the constraints applied to fishing from
canoes by the indigenous peoples. Britain and the United States enacted
the regulations in their laws, but the defects of the scheme quickly became
apparent. The seals migrated beyond the zones created in the regulations
and were followed by sealers. Moreover, the measures applied only to
British and American sealing vessels, and nothing prevented sealing by
other States or, indeed, the reflagging of British and American ships under
foreign flags in attempts to evade the ban. Japan, in particular, availed itself
of the opportunity offered by the statutory limitations on British and
American sealing in the Behring Sea to catch the seals.
The episode illustrated two basic constraints that still limit the effect-
iveness of environmental regulations. First, regulations could not be
imposed by some supranational authority upon all participants in the
exploitation of the resource, because there was no such authority. The
measures had to be adopted by agreement between the national States of
the persons concerned. Secondly, even when the agreement was made, it
was impossible to prevent the problem of the ‘free rider’ who is not bound
by the restraints imposed by the agreement and is free to reap the benefits
produced by the restraints on parties to the agreement.
An obvious solution was to have an agreement between all the States
whose nationals were engaged in the exploitation of the fishery. The
United States proposed this, and Japan and Russia agreed to begin
 The Global Environment 
negotiations. Britain, however, feared the impact of extended restrictions
on sealing upon Canadian fishing interests, and refused to join in the
negotiations, prompting the US Ambassador in London, John Hay, to
observe that ‘I had always thought of English diplomacy as overbearing
and pigheaded, but I never imagined it was tricky and tortuous.’
Intensified Japanese sealing and a severe decline in the seal stock crippled
the Canadian sealing industry and forced Britain to the negotiating table.
James Bryce, the British Ambassador to the United States, proposed a
bilateral agreement between the two States under which Canada would
suspend sealing in return for a share of the US catch. The agreement was
to enter into force only when all four sealing States had agreed upon a ban
on catching seals at sea. In  the four States agreed on a multilateral
treaty that proved very effective: the Pribilov seal stock tripled in size in
the first six years, and by  it had grown from the  figure of
approximately , to ,, animals. The treaty continued in
force, despite World War One and the Bolshevik Revolution, until ,
when Japan’s withdrawal brought it to an end. A revised treaty was
adopted in  and it remained in force until , when opposition in
the United States to sealing prevented US ratification of a protocol which
would have renewed the treaty.
One commentator has written of the  Treaty that:
the treaty succeeded by changing the rules of the game, by restructuring the rela-
tionships among the countries. In particular, five tasks needed to be achieved, each
necessary for success, but each also almost useless should any of the others fail.
The treaty needed to: () create an aggregate gain, a reason for all countries to
come to the bargaining table; () distribute this gain such that all countries would
prefer that the agreement succeed; () ensure that each country would lose by not
participating, given that all the others agreed to participate; () provide incentives
for all the parties to comply with the treaty; and () deter entry by third parties.
The gains to the parties from participating in the Treaty were clear
enough. The seal stock would survive and recover, whereas extinction
of the stock through overfishing was the likely result of international
inaction. The difficult part was providing the incentive to comply with the
treaty restrictions on catches, and deterring catches by non-party States.
The peculiar nature of the trade in seal skins made a solution possible.
Practically all commercial processing of the skins was undertaken in

1
Scott Barrett, ‘The North Pacific Fur Seal Treaty and the Theory of International
Cooperation’, Chapter  of Environment and Statecraft—The Strategy of Environmental
Treaty-Making (Oxford: Oxford University Press, ), p. . The foregoing account owes
much to this paper.
 International Law
London, and if traders were denied access to the London market there
was little point in catching and skinning the seals. The treaty therefore
stipulated that only skins certified as having been taken in accordance with
the treaty could be imported into any of the Member States. Here, too, the
 treaty foreshadowed later developments, creating a device that has
been used in other environmental treaties in order to overcome the ‘free
rider’ problem.
The Behring State Fur Seal episode epitomizes the limitations under
which international law continues to labour in efforts to establish effective
environmental regulations. But it could have been very different.
The tribunal approached the matter as one essentially concerned with
the scope of coastal States’ rights over areas of the high seas adjacent to
their territorial waters. From that perspective the legal position was clear.
For more than two centuries the dominant view had been that the high
seas were free for use by ships of any State, and not subject to regulation
by coastal States. There was debate over the exact distance to which coastal
jurisdiction over adjacent waters extended; but the basic principle of the
freedom of all States to use the high seas was firmly established. This
principle was of considerable importance to European powers, whose
freedom to trade with overseas colonies was dependent upon the freedom
to navigate around the oceans without interference from coastal States,
and who had built up considerable naval, merchant, and fishing fleets.
The Behring Sea Tribunal could, however, have taken a different view.
It could, for example, have decided that the United States had some kind
of property right in the seals when they were in herds on its land territory,
and that taking seals on the high seas was a violation from outside United
States territory of those rights.
Alternatively, it could have taken up the United States’ idea of a kind of
‘trusteeship’, and said that precisely because the seals were a common
resource, available to be caught by all States on the high seas, the United
States (as the State on whose territory they bred) had a particular obliga-
tion to take measures to protect and manage that common resource. Or it

2
It was a colourful trade. ‘In the London fur trade grown men were employed in the s
to bring seal skins to plasticity by jumping on them. “It is a curious sight, on entering a room,
to see a row of . . . tubs each with its Jack-in-the-box bobbing up and down”, wrote one of
Booth’s investigators. “Every man is naked except for a vest, and a rough cloth which is tied
round his waist and attached to the rim of his barrel. With hands resting on either ledge up and
down he treads, and earns s to s piece-work. Skins cured by this process are said to be softer
and silkier”.’ Samuel Raphael, ‘Workshop of the World: Steam Power and Hand Technology
in mid-Victorian Britain’, History Workshop Journal , No., pp. –, at p. .
 The Global Environment 
could have inverted that approach and held that although all States had a
right to catch seals on the high seas, that right had to be exercised with due
regard for the rights of others who have an interest in the seals and was
subject to obligations not to take so many seals as to extinguish the
resource. That obligation, it might have said, could be secured by agree-
ment between all interested States; but in the absence of such agreement
it could be secured by measures adopted unilaterally by the ‘breeding’
State. Or it could have taken an altogether more imaginative approach,
distinguishing between the incidents that attach to private property on the
one hand and to common property and to collective (State-owned) prop-
erty on the other hand. It might, for example, have said that whereas
private property entails rights to use and dispose of the goods as the owner
might choose, collective property cannot be used in such a way but must
be managed with a view to its sustainable development, for the benefit of
all present and future users.
The fact that the Behring Sea Tribunal did not take any of these
approaches might be the result of a tribunal fearful of innovation and
opting for the safe ground of a conservative analysis, or serving the
broader interests of powerful States in maintaining the freedom of the
seas, or heavily influenced by the analogy of the treatment of animals
under the game laws in municipal legal systems. Explanations can be given
at different levels of analysis of the motivation and reasoning of the tribu-
nal, and none is likely to capture all of the truth. What is plain is that it
is unrealistic to suppose that decisions of this kind are motivated by
the cynical self-interest of States and the lawyers upon whom they
bestow their favours and patronage. It is a question of world-view, of weltan-
schauung. This is not simply a matter of belief about the exhaustibility of
resources. It is a question of who carries the responsibility for the man-
agement of resources, what those responsibilities are, and to whom they
are owed.

.  

The alternative approaches that I have outlined, and which the Behring
Sea Tribunal might have taken, mark out some of the main avenues along
which international environmental law subsequently developed. The two
main lines are what might be called the ‘transboundary harm’ approach,
and the ‘trusteeship’ approach, and these were pursued alongside the
classical route of environmental management by international agreement,
exemplified by the handling of the fur seal dispute.
 International Law

.  

The transboundary harm approach was followed in one of the best-known
of international environmental cases, again involving Canada and the
United States, the Trail Smelter arbitration. More of a saga than a case, the
dispute arose from the operation of a lead and zinc smelting plant estab-
lished by United States investors in Trail, British Columbia, in , and
later sold to Canadian investors. Emissions of sulphur from the smelter,
which had risen by  to around , tons per month, fell as acid rain
and were causing significant damage to the Columbia River valley in the
State of Washington in United States. The United States complained, and
in  the matter was referred to the International Joint Commission
(IJC) established under the  Canada–US Boundary Waters Treaty.
The IJC appointed two scientists to investigate, and heard testimony from
interested parties and from counsel. It recommended that Canada pay the
United States $, for damage caused up to , and also recom-
mended other ameliorative measures. The United States remained dissat-
isfied by continuing pollution from the smelter, as were the residents
of the affected areas of Washington. No remedy was available in the
Canadian courts because under Canadian law the courts would not take
jurisdiction in cases of damage to foreign land. Accordingly, in  the
two States agreed in a Convention signed in April  to submit to an
arbitral tribunal the question whether the smelter had caused damage in
the State of Washington after , and if so whether and how the smelter
should refrain from causing damage, and what compensation should be
paid. Article IV of the  Convention stipulated that:
The Tribunal shall apply the law and practice followed in dealing with cognate
questions in the United States of America as well as international law and practice,
and shall give consideration to the desire of the high contracting parties to reach a
solution just to all parties concerned.
The Tribunal was, in other words, directed to apply United States domes-
tic tort law, ‘as well as international law and practice’. The inevitable result
of this choice of law clause, in the wake of the prior IJC recommendation
that Canada compensate the United States for pre- pollution (con-
firmed as an obligation of the United States in Article  of the 
Convention), was that the case would be characterized as one of nuisance,
with liability attaching to those who caused damage.
The Tribunal said that ‘the law followed in the United States in dealing
with the quasi-sovereign rights of States of the Union, in the matter of air
pollution, whilst more definite, is in conformity with the general rules of
 The Global Environment 
international law’. That was true; but the basis in international law which
the Tribunal compared with United States law was remarkably slender. It
was essentially confined to the elementary proposition that a State owes a
duty to protect other States against injurious acts by individuals from
within its jurisdiction. As the Tribunal noted, the real difficulty is in
knowing what is deemed to constitute an injurious act. It observed, in an
unusually frank explanation by a tribunal of its reasoning process, that:
No case of air pollution dealt with by an international tribunal has been brought to
the attention of the Tribunal nor does the Tribunal know of any such case. The
nearest analogy is that of water pollution. But here, also, no decision of an inter-
national tribunal has been cited or found.
There are, however, as regards both air pollution and water pollution, certain
decisions of the Supreme Court of the United States which may legitimately be
taken as a guide in this field in international law, for it is reasonable to follow by
analogy, in international cases, precedents established by that court in dealing
with controversies between States of the Union or other controversies concerning
the quasi-sovereign rights of such States, where no contrary rule prevails in inter-
national law and no reason for rejecting such precedents can be adduced from the
limitations of sovereignty inherent in the Constitution of the United States.
That reasoning is notable for the willingness of the Tribunal to treat two
independent sovereign States on a par with constituent components of
federal States. Theorists might say that the Tribunal was in effect positing
the existence of a public order in which the two States were to be treated as
having common interests, and to which a unified public interest applied,
as it does within a federal State. That would be in contrast to the crude
atomism of the ‘States as co-existing independent communities’ view of
international law exemplified by the notorious dictum of the PCIJ in the
Lotus case, that ‘rules of law binding upon States emanate from their own
free will. . . . Restrictions upon the independence of States cannot there-
fore be presumed.’
Whatever the validity of the claim of a constitutional shift in the Trail
Smelter award, it certainly adopted an approach more focused upon the
notion of shared resources, and more concerned with the custodianship of
those resources, than the Behring Sea award had been. That development
is reflected in the fact that the Tribunal also referred to two other, extra-
legal, factors: the ‘desire of the high contracting parties to reach a solution
just to all parties concerned’, and the fact that ‘great progress in the con-
trol of fumes has been made by science in the last few years’. The reference
to progress in science, which the Tribunal said ‘should be taken into
account’, is particularly striking. It is hard to read it as saying anything
other than ‘we can protect the environment, therefore we should’.
 International Law
The Tribunal held that:
under the principles of international law, as well as the law of the United States, no
state has the right to use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another or the properties or persons
therein, when the case is of serious consequence and the injury is established by
clear and convincing evidence
The Tribunal also held Canada liable to pay compensation, in modest
amount, to the United States, and it set out a detailed operating regime for
the smelter based upon experiments and trials conducted during the three
years between its first, ‘temporary’ decision in  and its final, definitive
award in . The particularity of the regime is remarkable: it specified,
for instance, that:
If the Columbia Gardens recorder indicates . part per million or more of
sulphur dioxide for three consecutive twenty minute periods during the non-
growing season and the wind direction is not favorable, emission shall be reduced
by four tons of sulphur per hour or shut down completely when the turbulence is
bad, until the recorder shows . part per million or less of sulphur dioxide for
three consecutive twenty minute periods.
The award provided for the establishment of a tribunal made up of
three scientists, which would have the power to make final decisions if the
parties could not agree upon any amendments or suspensions of the
regime that either of them might request. It is rare to find tribunals enter-
ing so fully into the detailed examination and prescription of technical
standards, even if (like the Trail Smelter Tribunal), they are assisted by
scientists; but the Tribunal’s approach is one that has been emulated in
later agreements.
Given the terms of the agreement between the two States to refer the
matter to arbitration, and the context of the dispute, which was not so
different from inter-State disputes within one of the two federal States
parties to the litigation, this approach by the Tribunal to the characteriza-
tion of the dispute, and its result, are not surprising. Why should it have
mattered whether the pollution in Washington State emanated from
British Columbia or Montana? Why should there be liability and com-
pensation in one case but not the other? But the conclusion was, if not
startling, at least significant.
Compare the Trail Smelter award with the Behring Sea award. In both,
the ‘injurious acts’ complained of were not inherently unlawful: in the one
case, the operation of an industrial plant in Canada, and in the other seal-
ing on the high seas—both perfectly lawful activities. In both cases there
was a claim for injury made by a State, effectively acting as custodian or
 The Global Environment 
representative or trustee of the national interests damaged by the pollu-
tion rather than as the representative of individual claimants. In both cases
the pollution was a transboundary phenomenon. In the Trail Smelter case
activity in one State caused injury in another. In Behring Sea, activity on
the high seas caused injury in a(nother) State. But it is hard to see why
harm emanating from the high seas should be any more acceptable than
harm emanating from the territory of another State.
The two cases can, of course, be reconciled; but that is not the point.
The point is that the Trail Smelter decision opened up a line of reasoning
that imposed international liability for transboundary pollution, and
admitted environmental arguments onto the stage of international law in
their own terms, without attempting to force them into the straightjacket
of traditional legal conceptions of right, duty, and property.

.    

 
The other approach that the Behring Sea Tribunal might have taken, based
upon the United States ‘trusteeship’ argument, is an altogether more
radical development. It represents a fundamental shift in the perception of
the relationship of States towards shared resources and their responsibil-
ities towards them. By ‘shared resources’ I mean not only what are some-
times called, with the faintly depressing wooliness that characterizes some
of the writing on international environmental law, ‘global commons’, such
as the high seas and outer space, but also resources that may at any given
moment be within the jurisdiction of one State (within its territory or
territorial sea), but which are liable to move so as to come within the juris-
diction of another State—fur seals, fish, and air are examples.
The clearest example of this development in legal thinking is found in
the provisions of the  UN Convention on the Law of the Sea that
regulate fishing. Throughout the eighteenth and nineteenth centuries the
rule generally applied in the European States and their colonies was that
the coastal State had an exclusive right to fish in its territorial waters and
that all States had the right to fish on the high seas beyond territorial
waters. There were, it is true, variations. Some States claimed wider terri-
torial seas than others, or a wider territorial sea for the purposes of fishery
regulation than for other purposes. But these variations were minor, and it
was generally accepted that however the zones were structured, coastal
States had no jurisdiction over foreign vessels fishing more than twelve
miles from the coasts. This created a dichotomy: exclusive fishing rights,
and the possibility of full coastal State control, within the territorial sea or
 International Law
exclusive fishery zone, but a free-for-all on the high seas. True, each State
could regulate fishing vessels sailing under its flag on the high seas; but
why would it wish to do so? Limiting the catch taken by its own vessels
would simply leave more fish for others to catch; and it would probably
lead at least some fishermen to move their vessels to a different, less
restrictive, flag.
The first attempts to codify the Law of the Sea addressed this problem.
At the League of Nations Codification Conference in , it had been
impossible to secure international agreement on an extension of the right
of the coastal State to regulate fisheries beyond its territorial sea.
Opposition from States with distant-water fishing fleets, and with other
strategic interests in keeping their ships on the high seas free from coastal
State interference, precluded it. In , at the first United Nations
Conference on the Law of the Sea, a Convention on Fishing and the
Conservation of Living Resources of the High Seas was prepared. It was
based upon the principle that all States had the right to fish on the high
seas, although it recognized that a coastal State had ‘a special interest in the
maintenance of the productivity of the living resources in any area of the
high seas adjacent to its territorial sea’, and it obliged States to co-operate
in regulating high seas living resources so as to make it possible to achieve:
the optimum sustainable yield from those resources so as to secure a maximum
supply of food and other marine products. Conservation programmes should be
formulated with a view to securing in the first place a supply of food for human
consumption.

If nationals of two or more States were engaged in exploiting a fishery,

conservation measures were to be adopted by agreement among the
States. If agreement proved impossible, an adjacent coastal State could
impose non-discriminatory conservation measures. Disputes were to be
settled by ad hoc Commissions, which would review the scientific evidence
and determine if non-discriminatory measures should be upheld.
That Convention was not a great success. It failed to meet the demands
of coastal States for extended jurisdiction over adjacent waters, and the
practical need to reach agreements in order to safeguard particular stocks
was being addressed with some success by local and regional agreements
on fisheries. The Convention attracted only thirty-seven ratifications
(including Switzerland), and was soon overtaken by events.
Pressure from coastal States to permit them to regulate fishing in high
seas areas adjacent to their coasts was one of the factors that led to the
massive revision of the law undertaken by the Third UN Conference on
the Law of the Sea between  and . The resulting  United
 The Global Environment 
Nations Convention on the Law of the Sea adopted a novel approach to
conservation of fish stocks. It allowed States to extend their jurisdiction
over fisheries out to  miles from the shore. In practical terms, that
no doubt appeared to be its major innovation in this field. But the real
innovations appeared in the details of the regime that applied within the
-mile zone. Instead of ascribing exclusive jurisdiction to the coastal
State, with the implication that it could do as it pleased with the fish stocks
under its jurisdiction, the Convention created a more balanced regime in
which rights and duties go hand in hand. It is a regime that is in many ways
closer to the idea of ‘trusteeship’, with which the United States had tried
unsuccessfully to lure the Behring Sea tribunal, than to municipal law
concepts of property ownership.
The coastal State has the sovereign right to manage living resources
within its -mile exclusive economic zone (EEZ), but is obliged ‘to pro-
mote the objective of optimum utilization’ of those resources. The State
must determine, ‘taking into account the best scientific evidence available
to it’, what the total allowable catch of living resources in its EEZ is, and
then determine how much of that catch it can itself take. Any surplus of
the allowable catch which it cannot itself take must be made available to
other States, with a certain priority for developing, land-locked and geo-
graphically disadvantaged States, on terms to be agreed with the coastal
State. Thus, the coastal State has in effect only a ‘first priority’, a right to
take as much of the total allowable catch as it wishes, before allowing in
others. The intention is that in this way the full potential of the living
resources will be utilized without the danger of over-exploitation, against
which the coastal State is specifically required to guard. In the case of
anadromous species (such as salmon), which ascend rivers in order to
spawn, and catadromous species (such as eels), which leave freshwater to
spawn in saltwater areas such as the wide Sargasso Sea, the ‘freshwater’
State has ‘the primary interest in and responsibility for’ the stock, which
may only be caught within its EEZ.
The coastal State can charge other States for access to the surplus. In
, the EU paid € million to Mauritania for access to its EEZ, for
example. There is much debate as to the fairness of the terms on which
these agreements are made and on the efficacy of the measures taken to
prevent overfishing. It is said by some that fishing licences that authorize
a certain number or tonnage of foreign fishing vessels to have access to an

3
i.e., States with short coastlines (e.g., the Democratic Republic of the Congo: land area,
,, sq km; coastline,  km), or whose maritime zones are blocked in by the zones of
neighbouring States (e.g., Jordan, Singapore, and Slovenia).
 International Law
EEZ are much less effective conservation measures than licences that
directly limit the size of catch that can be taken; and that licensing often
leads to foreign vessels taking fish out of the region for processing, so that
the coastal State loses out on the development of the parts of the fishing
industry that add most value to the catch; and it is said that the buying of
licences by the flag State may amount to a subsidy (possibly unlawful
under the WTO rules) to its fishing industry, which may harm the devel-
opment of fish catching, processing and marketing industries in the
coastal State.
There is also much debate over the efficacy of conservation measures.
The problems begin with uncertainty over the data on the size of fish
stocks. Estimates of stock size are derived by extrapolation from data
taken at particular places at particular times; but there is frequently con-
troversy as to how representative the data is of the situation elsewhere in
the seas. As far as conservation techniques are concerned, there may be
debates as to whether the best approach is to set minimum mesh sizes for
nets (which are designed to allow small young fish to swim through, and
stay in the fishery to breed and grow), or to specify closed areas or closed
seasons in which fishing is banned, or to allow in a certain number or ton-
nage of fishing boats for a certain number of fishing days, or to permit the
catching of a certain tonnage of fish. Each approach may have a crucially
different impact. Moreover, States tend to be reluctant to accept any
measures which impose heavy burdens upon their own fisherfolk, particu-
larly if they see or suspect that fisherfolk from other States are receiving
what might be considered to be more favourable treatment—and, of
course, the fishing lobby in each State tends to suppose that fisherfolk
from other States will cheat and disobey any measures that are imposed.
All fishing lobbies tend to press for quotas that scientists regard as too high
to be sustainable; but gaining agreement on conservation measures is no
easy matter, even if the scientific basis for them is clear and accepted by
those involved in the industry.
Then there is the problem of by-catches. A quota may be set for one
species, but the nets may drag out many other species, too; and fish that are
too small for commercial sale or are of the wrong species may be thrown
back, usually dead, into the water. Estimates are hard to make, but by-
catches are thought to amount to something between  million and  million
tonnes of fish each year—perhaps one quarter of the total fish catch.
Perhaps the greatest problem, however, is that of Illegal, Unregulated and
Unreported fishing (IUU fishing). Monitoring fish catches is not as easy as
monitoring, say, opium crops or poaching on a wildlife reserve; and the
rewards for ignoring fishery laws can be high—luxury fish such as the
 The Global Environment 
Patagonian Toothfish can be worth well over $, each. The sheer size of
the oceans makes effective policing at sea an extremely difficult task, and
attention is focused on monitoring the land-based trade in valuable fish.
Programmes such as the Catch Documentation Scheme introduced under
the  Convention for the Conservation of Antarctic Marine Living
Resources (CCAMLR) in Antarctic waters appear to be having some suc-
cess; but criticisms of the efficacy of conservation measures remain valid.
There is much in these, and other, criticisms that casts doubt on how far
the regime under the  Convention is achieving its objectives. But the
central point is clear: under the Convention rights of ownership are firmly
welded to responsibilities for securing the optimum and sustainable
development of living resources within the State’s maritime zones. This
principle is being supported by initiatives taken in international organiza-
tions. For example, the Food and Agriculture Organization (FAO), the
UN body with primary responsibility for fisheries, adopted a Code of
Conduct for Responsible Fisheries in , and prepared an International
Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing in . Both are statements of general principles
and best practice; but they signal a serious attempt to bring proper
resource management to the world’s main commercial fisheries, and also a
sensitivity to the special positions of developing countries and of artisanal
fisherfolk.
This, then, is the second approach that is emerging: a redrawing of the
fundamental nature of the rights and duties of States in respect of marine
living resources which, in broad terms, they ‘own’. It sits alongside the
concept of transboundary environmental harm as one of the two main
developments in international environmental law. Much of the work in
this field is, however, still done by the conclusion of agreements between
interested States. Treaties regulating fishing were being concluded in the
nineteenth century. The fisheries around the Channel Islands were regu-
lated in a treaty between Great Britain and France in , and the States
Parties to a multilateral treaty made in  sought to improve the policing
of fisheries in the North Sea by giving reciprocal rights to board and search
fishing vessels, for instance. States have much experience of co-operative
resource management in this area.
Fisheries treaties are concerned with the rational use of shared goods;
but much the same legal problems arise in the fight against shared evils,
such as disease and pollution. International co-operation in the fight

4
There is no duty of optimum or sustainable development of non-living resources, such
as oil.
 International Law
against disease has a long history. From the fourteenth century onwards
there were established practices in Europe for dealing with plagues by
means of quarantines, imposed by a cordon sanitaire. The cholera and
influenza epidemics of the s prompted attempts to convene an inter-
national conference to focus on co-operation in the field of healthcare and
disease control. This was the period in which the pioneering work in the
field of public health, sanitation and epidemiology was undertaken by
Edwin Chadwick, John Snow, and others whose contribution to the welfare
of mankind is as monumental as it is now neglected. Their work repre-
sented an alternative approach, opposed to the quarantines which were
regarded in Britain as inconvenient interferences with trade and move-
ment and ineffective against the spread of disease. There was a tendency to
see diseases as pestilential visitations from ‘abroad’—one of the early
() conventions referred to measures against ‘a disease reputed to be
importable’. That view fitted the idea of the quarantine as a defensive
measure. But as the precise patterns of epidemics were studied more
closely it became clear that some diseases, at least, were home-grown, and
that quarantines offered no defence against them.
The first International Sanitary Conference was convened in Paris in
 (by which time there had been further epidemics of influenza,
typhus, typhoid, and cholera). The success of that conference was limited.
The resulting Convention was ratified only by France, Portugal, and
Sardinia; and Portugal and Sardinia subsequently withdrew. The threats,
however, remained, as repeated outbreaks of cholera showed. Indeed, they
increased as steam-powered ships made communication faster and easier,
particularly after the opening of the Suez Canal in . Scientific know-
ledge also increased rapidly, and by the s the ‘germ theory’ of disease
had displaced the view that diseases sprang from bad air or ‘miasmas’. The
coincidence of need and understanding facilitated progress; and after a
number of international conferences, States began to agree upon ways of
combating the spread of these deadly human diseases, little more than a
decade after they had taken swifter action to protect European vines from
phylloxera. In  an International Sanitary Convention concerning
cholera was adopted at a conference in Venice; and in  a Convention

5
It is an interesting question whether these practices were so uniform, and whether the
expectation of their implementation was of such a nature as to generate a rule of customary
international law. If so, this would be a relatively rare early example, in the field of what we
would now call the Law of Peace, of a customary international law rule that is not a claim to a
right or to immunity.
6
The first treaties to address diseases of plants appear to have been the Convention
Respecting Measures to be Taken Against Phylloxera Vastatrix of  and its  revision.
 The Global Environment 
concerning the plague was adopted.  saw the establishment by
American States of the International Sanitary Bureau (ISB), succeeded by
the Pan American Sanitary Bureau in  and subsequently restructured
as a regional office of the World Health Organization (WHO), itself estab-
lished as a UN specialized agency in .
International health conventions focused on the early notification of
outbreaks of diseases. For many years only cholera, plague, and yellow
fever were notifiable, but a revision of the International Health
Regulations by the WHO in  in the light of the fears of worldwide
epidemics of Severe Acute Respiratory Syndrome (SARS) and of avian
influenza A (HN) obliged WHO States to report all events that may
constitute a ‘public health emergency of international concern’ (PHEIC)
and public health risks outside their territory that may cause international
disease to spread, so that co-ordinated international responses may be
organized. Human diseases have been the primary, but not the only, focus
of attention. For example, the International Convention for the Campaign
against Contagious Diseases of Animals was concluded in , and the
International Convention on the Protection of Plants, in , and, span-
ning the animal and plant kingdoms, the Convention Regarding the
Organisation of the Campaign against Locusts, in —this last
Convention, anticipating the trans-boundary Trail Smelter approach,
obliging States Parties to ‘take the necessary measures against locusts
liable to damage the crops of neighbouring States’.
Generations to come, looking at the record of treaty-making in the
century and a half that followed the devastating epidemics of the mid
nineteenth century, may wonder why it was that States put such energy
into the international regulation of shipping, telecommunications, trade,
taxation, and warfare, and relatively little into international co-operation
to contain and eradicate diseases that killed many millions of people each
year—and even that limited effort focused upon protecting the peoples of
Europe and North America. Some explanations may be offered for the
lack of treaties on co-operation over human diseases. Perhaps the most
important is that the shift from the focus upon quarantine to a focus on
public health left most of the responsibility for the taking of concrete steps
in the hands of individual States, responsible for their own territories.
There is less need for international co-operation than there would be if the
necessary preventive measures straddled international boundaries.
Another reason is that the international community of physicians and
healthcare workers is quick to transmit news of new techniques and prod-
ucts, and to adopt them (although the access of poor States to expensive
pharmaceuticals protected by intellectual property rights remains an
 International Law
acute problem, addressed but only partly resolved in the WTO Doha
Declaration on the TRIPS Agreement and Public Health). Put another
way, the non-State channels are very effective in public health, as they
tend to be in other technical fields, so that the need to secure international
co-operation by making treaties is reduced. A third factor is the existence
of regional and international organizations, such as the Pan American
Health Organization (PAHO) and the WHO, which continuously inform
and consult with relevant individuals and organizations in their Member
States.

.     


So far I have concentrated upon developments in the pre-, pre-UN
era; and for a reason. The picture after  is very different, so much so
that it is tempting to think that the Depression, the troubles of the s,
and World War Two in some way wrought a profound change in the
attitude of governments towards ‘the environment’ in its broadest sense—
that is, to the natural world upon which their philosophies and fantasies
are played out. Whether or not that is so, there are identifiable causes of a
shift in views of the environment. Two stand out. First, the massively
increased ability of mankind to exploit natural resources, and the parallel
appreciation that all of these resources—including those that repro-
duce—are exhaustible. And second, the realization that large parts of the
land, sea, and air were becoming seriously degraded by pollution, erosion
and other processes, in a manner that not only threatened human health
and the very survival of the ecosystem but, as the escalating costs of pollu-
tion could not be contained by governments, also threatened serious
disruption to commercial and industrial activity on the way.
The initial steps in the post-war world were tentative. Attention was
initially focused on the reconstruction of States battered by the War and
on getting the United Nations and the international trade and financial
institutions operating satisfactorily; and the Cold War impeded global
co-operation in many fields. That is not to say that no treaties were being
made at this time. There were many, some of substantial and enduring
importance, on a wide range of broadly environmental topics: plant
protection, the protection of wild birds, the regulation of fishing, the
regulation of nuclear energy, and international watercourses. But the
great leap forward in environmental law came rather later, in  when,
on the initiative of the Swedish Government, the UN General Assembly
adopted resolution  (XXIII).
 The Global Environment 
Resolution  (XXIII) began by noting ‘that the relationship
between man and his environment is undergoing profound changes in the
wake of modern scientific and technological developments’. It listed the
main international organizations involved with environmental matters,
and spoke of the need for intensified action to address this important
and urgent question, and for the creation of a framework within which
it could be addressed within the UN system. The resolution then
announced the convening of the United Nations Conference on the
Human Environment, to be held in  in Stockholm. Environmental
issues are now so much a part of everyday debate that it is difficult to
imagine a world that appeared oblivious to those concerns. But for those of
us brought up in the s, when schoolchildren were sent off to clinics
for sun ray treatment as a substitute for the real sun that struggled
patiently against the smogs of the industrial cities (which could be so
dense that visibility could sometimes be nil), environmental concerns
first intruded upon our consciousness with an awkward, and not entirely
convincing, novelty. It was not until  that the first Clean Air Acts were
introduced in the United Kingdom, in response to the Great Smog of
; and it was  before the Environmental Protection Agency (EPA)
was established in the United States. The Stockholm Conference brought
these issues to the fore.

.  

 
The immediate fruits of the  Conference were, as might have been
predicted, the adoption of a sonorous Declaration and the establishment
of a new international organization. The Stockholm Declaration sets out
 ‘Principles’, more reminiscent of a creed than of a legal instrument. At
first sight they appear to sit firmly in the genre of sanctimonious plati-
tudes which seems to be the natural dialect of international organizations.
‘Man has the fundamental right to freedom, equality and adequate condi-
tions of life in an environment of a quality that permits a life of dignity and
well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations’ (Principle ); ‘The
non-renewable resources of the earth must be employed in such a way as
to guard against the danger of their future exhaustion and to ensure that

7
The UK Meteorological Office records that during the great smog of December  the
visibility in the Isle of Dogs in London was at times nil. The fog was so thick that people could
not see their own feet.
 International Law
benefits from such employment are shared by all mankind’ (Principle );
‘Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve
the environment’ (Principle ); ‘International matters concerning the
protection and improvement of the environment should be handled in a
cooperative spirit by all countries, big or small, on an equal footing . . .’
(Principle ): that sort of thing. But in the midst of this orgy of senten-
tious vacuity, some important markers were laid down.
One is the frequently quoted Principle :
States have, in accordance with the Charter of the United Nations and the prin-
ciples of international law, the sovereign right to exploit their own resources pur-
suant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environ-
ment of other States or of areas beyond the limits of national jurisdiction.

That is a concise restatement of the Trail Smelter principle coupled with

an affirmation of the principle of permanent sovereignty over natural
resources—an assertion of the link between rights and duties. Other prin-
ciples found in the Stockholm Declaration were more novel and more
pointed. Three stand out. First, the assertion in Principle  that:
Environmental deficiencies generated by the conditions of under-development
and natural disasters pose grave problems and can best be remedied by accelerated
development through the transfer of substantial quantities of financial and
technological assistance as a supplement to the domestic effort of the developing
countries and such timely assistance as may be required.

Second, the assertion in Principle  that:

For the developing countries, stability of prices and adequate earnings for primary
commodities and raw materials are essential to environmental management, since
economic factors as well as ecological processes must be taken into account.

And third, a principle which builds upon those two affirmations of the
links between aid, trade and the environment, and which specifically
acknowledges the particular problems of developing States. Principle 
stated that:
Without prejudice to such criteria as may be agreed upon by the international
community, or to standards which will have to be determined nationally, it will be
essential in all cases to consider the systems of values prevailing in each country,
and the extent of the applicability of standards which are valid for the most
advanced countries but which may be inappropriate and of unwarranted social
cost for the developing countries.
 The Global Environment 
Principles  and  locate the debate on the environment clearly in the
context of the international economy. They recognize that the safeguard-
ing of the environment needs money and technology and that these will
have, broadly speaking, to flow from the North to the South, and that the
long-term preservation of the environment depends upon States develop-
ing secure and sustainable economic bases. This may appear trite; but it
was not a self-evident proposition. It would have been possible to say that
each State must ensure that activities in its own territory do not harm
others—the Trail Smelter principle—and leave it at that. Environmental
concerns could have been left on an essentially bilateral basis, with the
polluted looking to the polluter for remedial action. But the Stockholm
Declaration treats the matter as one of global concern and recognizes that
effective solutions to environmental degradation require a great deal of
international co-operation. The belching factories and waste tips of the
European industrial revolution arose because that was the cheapest way to
industrialize; and there is no obvious reason why a developing State
should not now choose to follow a similar route. In short, safeguarding the
environment was recognized as a global problem which had to be
addressed by every State; and those States lacking the money or technol-
ogy to move away from activities that degraded the environment had to be
given economic and technical assistance to help them to do so.
Principle  is immensely significant in a different way. It asserts that
the law should not necessarily be applied in the same way to every State,
rejecting the principle of formal equality according to which like cases
should be treated alike. Indeed, it is close to the dictum of Karl Marx in
his Critique of the Gotha Programme: ‘From each according to his abilities,
to each according to his needs.’ The responsibilities of rich States may be
different from those of poor States. For political scientists, this is a recog-
nition of an obvious and inescapable fact of life, which must be faced if
there is to be progress in global co-operation over the environment. For
lawyers, this is a fundamental shift in the formal structure of the legal
system, coinciding with efforts to force a similar shift in the area of inter-
national economic law by creating a New International Economic Order
based in part upon the idea of the ‘duality of norms’.
Both the shift from the bilateral to the multilateral approach and the
idea of common but differentiated responsibilities are aspects of what

8
Often attributed to Aristotle, in his Nichomachean Ethics, although this precise thought
does not appear to be there. The earliest formulation of the aphorism appears to be Cicero,
Topica, : ‘Valeat aequitas quae paribus in causis paria iura desiderat’—‘Let equity prevail
which requires equal rights for equal cases’.
9
See Chapter , above.
 International Law
might be seen as a movement away from the private and towards the public
law paradigm upon which I remarked at the opening of this chapter. But
while the significance of the identification of environmental degradation
as a ‘public’ issue cannot be denied, it was not treated as a matter to be
handled on the level of global public order, in the way that structure of
international trade was globalized in the WTO. This is evident when the
institutional structure established as a result of the Stockholm conference
is considered.
December , , marked a landmark in the development of inter-
national environmental law. It saw the adoption by the UN General
Assembly of nine resolutions bearing on the subject, including resolution
 (XXVII) under which the United Nations Environment Programme
(UNEP) was established. UNEP has a Governing Council and a small
Environment Secretariat: but UNEP is what it says it is, a programme,
like the UN Development Programme (UNDP) or the World Food
Programme (WFP), rather than an organization such as the World
Meteorological Organization (WMO). This reflects the nature of its work.
resolution  itself noted that:
responsibility for action to protect and enhance the environment rests primarily
with Governments and, in the first instance, can be exercised more effectively at
the national and regional levels.
Simple practicality dictates this approach. Pollution problems vary
widely, and so will the actions needed to remedy them. The main prob-
lems facing the enclosed waters of the Baltic are not those facing States on
West Africa’s Atlantic coast; the nature of land-based pollution in Europe,
both on land and in its great rivers, is different from that in the Caribbean.
And in any event, the difficulties of reaching agreement between States on
co-ordinated action are obviously reduced if the number of States
involved is kept small.
These points are reflected in the pattern of treaty-making in the years
following the  Stockholm Conference. The major treaties are regional
and the list is long. Among the examples are the  Oslo Convention on
Dumping at Sea and the  Paris Convention on the Prevention of
Marine Pollution from Land-Based Sources, combined in the 
Convention for the Protection of the Marine Environment of the North-
East Atlantic (OSPAR); the  Kuwait Regional Convention for
Cooperation on the Protection of the Marine Environment from
Pollution; the  Cartagena Convention for the Protection and
Development of the Marine Environment of the Wider Caribbean
Region; the  Abidjan Convention for Co-operation in the Protection
 The Global Environment 
and Development of the Marine and Coastal Environment of the West
and Central African Region; the  ASEAN (Kuala Lumpur)
Agreement on the Conservation of Nature and Natural Resources; and
the  Noumea Convention for the Protection of the Natural Resources
and Environment of the South Pacific Region.
This catalogue of regional initiatives gives some sense of the focuses of
international action on the environment; but it does not give the whole
picture. During the two decades following Stockholm some major inter-
national instruments of (at least potentially) global scope were adopted. In
the field of marine pollution, I have mentioned the  UN Convention
on the Law of the Sea, which functions as a framework within which sit
more specialized and detailed agreements, such as the  Convention
on Marine Pollution from Ships (MARPOL), adopted under the auspices
of the International Maritime Organization (IMO), a UN specialized
agency. This strategy of adopting a broad agreement defining basic aims
and procedures and then setting out detailed standards and commitments
in further agreements and protocols has been used successfully in several
environmental contexts. It enables States to make progress on broad
issues without being delayed by disagreement on fine details, and permits
the revision from time to time of detailed regulations without the need to
renegotiate an entire treaty. Thus, the Vienna Convention for the
Protection of the Ozone Layer was adopted in , and detailed provi-
sions on the emission of CFCs were introduced in the Montreal Protocol
in , which has itself been amended and adjusted several times.
Other notable multilateral conventions of this period addressing prob-
lems of environmental degradation include the  Convention on
Long-range Transboundary Air Pollution (LTRAP), the  Basel
Convention on the Transboundary Movement of Hazardous Wastes
(which regulates the trade in toxic waste, much of which was being sent to
Eastern Europe and to developing countries for disposal in order to avoid
the strict environmental regulations of Western Europe and North
America), and the  UN Framework Convention on Climate Change,
under which the Kyoto Protocol was adopted in .
There were also agreements that focused upon other aspects of the envir-
onment. In  UNESCO sponsored the Convention for the Protection
of the World Cultural and Natural Heritage, in order to identify, conserve,
and present to the public both man-made and natural sites of outstanding
importance. The listed sites (which in  included  cultural,  nat-
ural, and  mixed sites in  States Parties) include well-known sites
such as the Great Wall of China, the Pyramids, and the Great Barrier Reef,
less-known sites such as the Hypogeum in Malta, sites virtually untouched
 International Law
by man, such as Henderson Island in the Pitcairn group, and some sites for
which protection came too late or ineffectually, such as the Old Bridge in
Mostar (destroyed in the  Balkan wars; now reconstructed), the Old
City in Warsaw (flattened by the Nazis after the  Warsaw Uprising;
now reconstructed), and the Buddhas of Bamiyan (destroyed by the
Taliban in ; still rubble). Wildlife gained protection under instru-
ments such as the  Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES), which protects around ,
species of animal and , species of plant by requiring and controlling
the supply of licences for trade in the protected species or products made
from them. Migratory species are given special protection under a 
Convention; and wetlands (broadly defined to include estuaries, swamps,
fens, lakes, rivers, and paddy fields) are given some protection under the
 Ramsar Convention. States Parties are pledged to promote the con-
servation of listed wetlands of international importance, and to promote ‘as
far as possible the wise use of wetlands in their territory’. The United
Kingdom listed the island of Diego Garcia as such a wetland. It gave the
island over to the United States in the s for use as a military base.

. ,   ,

  , 
By the s governments were better informed on environmental issues and
more concerned to grapple seriously with them. They recognized that while
agreements on specific topics and regions were important ways of pinning
States down to precise and measurable obligations, environmental issues tend
to form part of a complex inter-connected web. The need for a more inte-
grated approach was reflected in the declarations produced by the  UN
Conference on Environment and Development (UNCED), also known as
the Rio Conference or the ‘Earth Summit’. One clear sign of it is the
Convention on Biodiversity, adopted at the Conference. That Convention
aims to conserve biological diversity, and to encourage the sustainable devel-
opment of biological resources and the fair and equitable sharing of the bene-
fits arising from them. It is the biodiversity itself—‘the variability among
living organisms from all sources including, inter alia, terrestrial, marine, and
other aquatic ecosystems and the ecological complexes of which they are part’,
as Article  of the Convention puts it—that is the focus, rather than any
particular species. Put another way, by obliging States to co-operate in and
plan for ‘the conservation and sustainable use of biological diversity’, the
Convention obliges them not only to conserve all species but also to safeguard
the ecological balance between them. At the same time it is recognized that
States have the right to exploit their natural resources: the Convention does
 The Global Environment 
not seek to put an end to development. One controversial aspect of this right
concerns control over the exploitation of the biological resources, such as rare
plants in rain forests, whose medicinal and other properties are known only to
indigenous peoples. It is feared that western companies will appropriate that
traditional knowledge and tie it up in intellectual property rights. Western
companies, on the other hand, are fearful of the Convention provisions which
require the transfer to developing countries on fair and most favourable terms
of technology relevant to the conservation and sustainable use of biodiversity.
The latter concern is a major reason for the non-ratification of the Convention
by the United States. Despite these reservations, progress continues to be made.
The Biodiversity Convention was supplemented in  by the Cartagena
Protocol on Biosafety, which seeks to protect biodiversity from threats posed by
Living Modified Organisms (which are practically the same as Genetically
Modified Organisms or GMOs) by requiring the ‘Advanced Informed
Agreement’ of States before they import such organisms.
This integrated approach, protecting habitats rather than species, is
increasingly widely adopted. In  a Convention on the Protection of the
Alps and in  another on the Protection of the Carpathians were con-
cluded. They aim to conserve the ecosystems and cultural traditions of those
areas, and to manage the threats resulting from development and tourism. In
 the European Community adopted the Habitats Directive, which has
been a powerful and influential tool of environmental conservation.
The broad and integrated is evident also in two other key documents
emanating from the Rio Conference. The first is the Rio Declaration on
Environment and Development, which sets out principles designed to rec-
oncile environmental and developmental needs. The Declaration is
notable for its insistence on sustainable development, a concept which
unites the ideas of custodianship of the earth’s natural resources and of the
duty of each generation to leave the earth in a reasonable state for future
generations, and which is a pivotal concept in contemporary environ-
mental law. A UN Commission on Sustainable Development was estab-
lished in . The Declaration also sets out, as Principle , another
central concept: the precautionary approach (or precautionary principle):
In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.

10
Also the subject of another convention, the  Treaty on Plant Genetic Resources.
11
Its coherence is another matter. See my contribution, ‘Sustainable Development and
Unsustainable Arguments’ in Alan Boyle and David Freestone, International Law and
Sustainable Development (Oxford: Oxford University Press, ), pp. –.
 International Law
The principle should not need to be declared; but States have a sorry his-
tory of refusing to take action to protect health and the environment for as
long as there is the slightest uncertainty about the need for urgent action.
The second key UNCED document is Agenda , a somewhat overblown
text that opens with the words ‘Humanity stands at a defining moment in
history.’ The document contains much conference verbiage, but also
contains many carefully considered proposals on ways to tackle ‘the delicate
balance between environmental and developmental concerns’ in the
twenty-first century. It places much emphasis on mechanisms to monitor
the actual implementation of agreed principles; and the UN Commission
on Sustainable Development itself reviews progress on the implementation
of Agenda  and the Rio Declaration.
In , , accredited governmental and non-governmental repre-
sentatives met in Johannesburg at the World Summit on Sustainable
Development, organized by the Commission on Sustainable Development,
in order to review progress on the Rio agenda. Despite general acknow-
ledgement that the situation on both the environmental and developmental
fronts was deteriorating alarmingly, there were few concrete results. The
delegates produced a political Declaration, in which one of the final para-
graphs reassuringly declared, ‘We commit ourselves to act together, united
by a common determination to save our planet, promote human develop-
ment and achieve universal prosperity and peace’ and set out a detailed Plan
of Implementation. It is difficult to avoid cynicism; but progress is being
made. The need for action to make development sustainable is widely
accepted by governments, businesses, and individuals, and is becoming a
normal part of their decision-making. Increased data collection and report-
ing is clarifying areas where urgent action is most needed. Above all, the
subject is at the top of the international agenda and, in many developed
countries, also towards the top of the domestic agenda. These are all essen-
tial preconditions for further progress, and are all radical improvements on
the position forty years earlier.

. 
Let me turn to the question of the implementation of the legal agreements
that have been concluded. I have indicated some of the topics with
which they deal: marine and atmospheric pollution; dumping of wastes;

12
According to some estimates , people participated in the Conference and parallel
events. More than twenty States or territories have populations under ,.
 The Global Environment 
preservation of species and habitats. Here I will focus on the techniques
that they employ to achieve their aims.

.. 
The instinctive reaction to undesirable behaviour is to ban it; and some
environmental treaties do this. The Montreal Protocol ban on the use of
chlorofluorocarbons (CFCs) is an example, effective partly because of the
strength of the evidence of the harm caused by CFCs to the ozone layer,
but more particularly because alternative, and profitable, technology was
already available. That is not always the case, and total bans are not always
feasible. Successful environmental regulation must not only be principled
but also practical: States will not ratify international agreements that
impose unrealistic obligations upon them. Furthermore, the world can
absorb a certain amount of pollution. Thus, the  MARPOL
Convention does not prohibit the discharge of all oil by ships at sea: it
limits the discharge of oily waste to  litres per nautical mile while the
ship is travelling, subject to overall limits on the total discharge; and it
prohibits discharges entirely in certain vulnerable areas. The sea is reck-
oned to be able to cope with these levels of discharge. The limitations
were, moreover, phased in over a period of years to enable shipowners to fit
equipment to their vessels that would enable them to operate within the
limits. Law and technology reinforce each other in this area. As new tech-
nology enables the reduction of harmful emissions, into the sea or soil or
atmosphere, it becomes practicable to forbid or limit the discharges and
require use of the technology. And the more the law regulates pollution,
the more profitable investment in the development of new, efficient, cost-
saving technology becomes.

..   

A second strategy is the setting of targets. Rather than impose bans on
pollution, States commit themselves to achieve a certain reduction in emis-
sions. The  Sulphur Protocol to the  LRTAP set a target of a %
reduction on  levels in sulphur emissions, which cause great damage in
the form of acid rain. The Parties met their targets, reducing omissions by
over %. A second Sulphur Protocol was adopted in , adopting a more
flexible approach, setting long-term goals for the achievement of critical
loads—i.e., ‘the concentration of pollutants in the atmosphere above which
direct adverse effects on receptors, such as human beings, plants, ecosys-
tems or materials, may occur, according to present knowledge’—and tailor-
ing the targets to the particular circumstances of each State Party. The
Protocol has an Implementation Committee to monitor compliance.
 International Law
The LRTAP experience shows realism rearing its head. It is, within
limits, better to accommodate the particular needs of certain States and
have them inside the regime than to adopt a stricter approach which will
result in them not joining the regime. This is the difficulty facing the 
Kyoto Protocol, adopted under the Framework Convention on Climate
Change. It, too, sets targets for emissions of greenhouse gases from devel-
oped States, and has innovative mechanisms to help achieve them. Each
State Party has an emission standard expressed in tonnes of carbon, but
States may buy and sell units (so-called ‘emissions trading’), or engage
in joint implementation projects for reducing emissions or increasing
carbon sinks (e.g., by planting suitable trees) or gain credits by participat-
ing in the Clean Development Mechanism and engaging in emission-
reducing projects in developing countries. These quasi-market
mechanisms have introduced flexibility into the implementation of the
carbon targets, and spawned an entire secondary industry dedicated to
the promotion of carbon trading in its various forms, which will con-
tribute to the pressure for compliance. Even so, the United States, cur-
rently the largest emitter of greenhouse gases, decided not to ratify the
Kyoto Protocol despite great pressure from other States concerned at the
impact of global warming. Its main concerns were that developing coun-
tries (including large emitters such as Brazil, China, and India) were not
subject to binding targets, and that the target set for the United States
would harm its industry. Opponents of ratification have questioned the
validity of the scientific data and analyses that support the view that emis-
sions cause global warming, and have also questioned whether the modest
reductions required under the Kyoto Protocol can have any significant
impact upon global warming.
..    
Prohibitions and targets are constraints upon State behaviour. A third
approach is more subtle. It leaves governments and others to decide what
action they will take but insists that the decision be taken with knowledge
of the environmental consequences. This is the international equivalent
of labelling food with lists of ingredients and leaving shoppers free to
choose whether to buy. The  Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes is one example. It
requires exporters of specified waste products to give written notification
of an intended international movement of waste to the designated author-
ity of the intended importing State, which may then permit (conditionally
or unconditionally) or prohibit the movement. The  Rotterdam
Convention on the Prior Informed Consent Procedure for Certain
 The Global Environment 
Hazardous Chemicals and Pesticides in International Trade has a similar
mechanism. It aims to promote shared responsibility and co-operative
efforts among Parties by facilitating information exchange. Parties are
required to adopt a policy of prohibiting, permitting, or permitting
subject to conditions imports of hazardous chemicals listed in an Annex
to the Convention; and exporting Parties must notify other Parties of
intended exports of chemicals that are banned or severely restricted.
States enforce import and export bans within their own territories.
This information-based approach is becoming more generalized. The
 Århus Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters sets
minimum standards for Parties regarding the disclosure of information
and participation in environmental decision-making, and on the availabil-
ity of judicial remedies for review of environmental decisions and
challenges to breaches of environmental laws. The rights extend to all
members of the public, without the need to show some special interest,
and to NGOs.

..   

Closely related to the information-sharing approach is the strategy promoted
by the  Espoo Convention on Environmental Impact Assessment in a
Transboundary Context. It requires States Parties to conduct environ-
mental impact assessments of certain kinds of development, such as the
construction of large dams or of paper pulp plants exceeding a specified
capacity, while they are at the planning stage, and to notify other States that
may sustain environmental effects from the development. The public in its
own territory and in territories likely to be affected by the development must
be given the opportunity to participate in the decision-making process. A
Protocol adopted in  extends these provisions and requires assessments
at a much earlier stage in a State’s development planning process.

.. 
A feature of many treaties is that regulated activities must be licensed by the
State Party in whose territory they take place. Exports of wastes for trans-
mission to other States, or for dumping at sea, are required to be licensed,
for instance. This mechanism is designed to ensure that governments
establish a national bureaucracy that can routinely monitor compliance
with the treaty obligations. For the most part, this works well, with busi-
nesses accepting the national regulations as one more set of rules within
which they must operate. But like all schemes that require government
approvals, it is open to evasion and the pernicious effects of corruption.
 International Law
That is one reason why the international efforts to combat corruption,
such as the  UN Convention Against Corruption and the various
OECD initiatives, including the  Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions, are so
vitally important in this, as in all other, fields.

..   

Many treaties require States Parties to collect and publish data and infor-
mation on their implementation of their treaty obligations. This keeps the
attention of governments on the need to fulfil the obligations and may
shame them into doing so, and also makes available to interested parties
a clear and updated account of progress, so that the need for further or
different action can be considered. Monitoring is the dominant mech-
anism for international supervision of environmental obligations.

..     

Unlike pollution known to result from routine industrial processes, some
pollution is accidental. Treaties address this aspect of the problem in
two ways. First, many treaties and other (non-binding) instruments
require or advise the adoption of safe procedures and technology to
minimize the risk of accidental pollution. I have mentioned MARPOL
and its requirements for the fitting to ships of technology (such as
crude oil washing, double-bottom hulls, load-on-top systems, and other
exotica) that should obviate most accidental pollution. Similarly, the
International Atomic Energy Agency lays down extensive standards on
nuclear safety. Secondly, where there is serious pollution someone must
try to clear it up. Several international treaties address this issue. The 
International Convention on Oil Pollution Preparedness, Response and
Co-operation, and the IAEA Conventions on Assistance in Case of a
Nuclear Accident or Radiological Emergency, and on Early Notification
of a Nuclear Accident, adopted in  after the explosion at the
Chernobyl power plant, are instances.

.. 
Finally, there is the question of implementation of environmental obliga-
tions by the imposition of liability. This brings me full circle to the ques-
tion with which this chapter opened: who can sue whom for breaches of
environmental obligations? There is no satisfactory answer to this ques-
tion in relation to widely distributed causes of environmental damage; but
in cases where damage is caused by identifiable persons liability can be
imposed.
 The Global Environment 
Since the s the basic principle has been that the polluter pays.
There is no great reliance on that principle as an enforcement mechanism:
the emphasis is, rightly, on prevention and cure. Nonetheless, several
treaties address liability because it is likely to be a practical issue in the case
of very serious incidents, where claims against those responsible are likely
to be large and complex. In relation to oil pollution, for example, the
response has been to couple strict liability with a limitation of liability, and
with provision for the establishment of a compensation fund in the courts
of a single State before which all claims arising from a single incident must
be brought. The  International Convention on Civil Liability for Oil
Pollution Damage follows the pattern set by its  predecessor in adopt-
ing this procedure. The  Convention on Civil Liability for Nuclear
Damage also provides for strict (in fact, absolute) liability coupled with
limited liability. The reason for limiting liability is that it makes it possible
to insist upon, and to obtain, insurance cover for the activities in question.
By spreading the risk in the insurance market it is possible to obtain
greater cover than is likely to be available to any single operator.
Furthermore, because insurance is expensive operators will seek to keep
its cost down as much as possible. Specialist insurers are well aware of
international standards on safe equipment and operating procedures
and will commonly insist on compliance with these as conditions of the
insurance. In this way the insurance system reinforces the basic standard-
setting approach in international instruments.

.   

As a postscript I should re-emphasize the point that although this chapter
has looked at specific legal instruments and initiatives, the current trend in
international law is to see environmental issues as inextricably bound up
with questions of trade and development. Action in those other fields is of
immense importance in the pursuit of environmental goals. For example,
World Bank lending policies require assessment of the environmental
impacts of projects for which Bank support is sought. An understanding
of international environmental law requires close attention to these other
fields, too.
 

The Use of Force

. 
Some regard it as a curious, if not paradoxical, idea that international law
should seek to regulate war and the use of force. It appears almost perverse
to use the instrumentality of the law in an attempt to regulate the precise
manner of violent killing and destruction of property. The idea might be
criticized from two angles. Some may say that killing and the destruction
of property are wrong, and that they should not be lent the colour of legit-
imacy by accommodating them within the law, and particularly not by
establishing rules that make it permissible to use force in this way. What is
the point of the  St Petersburg Declaration Renouncing the Use, in
Time of War, of Explosive Projectiles Under  Grammes Weight?
Does someone killed or maimed by a projectile care how heavy it was? Is it
all right to kill someone with an explosive projectile over  grammes in
weight? Should there be battlefield wardens checking the weights of pro-
jectiles, like weights and measures inspectors in municipal market halls?
Others may say that when the very existence of institutions and moral
principles of fundamental importance is under grave threat they must be
defended, and whatever is necessary for their defence must be done. This
is the view reflected in the ‘War is hell’ view, associated with General
Sherman’s justification for the swathe of destruction that he cut through
Georgia during the American Civil War, and more recently with US
Defense Secretary Rumsfeld’s observation that ‘stuff happens’, in
response to complaints of looting during the  invasion of Iraq. From
this perspective, all fault lies with those who committed the original
wrongs against which force is used (always defensively: no modern State
has a Ministry of Offence). If shocking violence occurs during a conflict,
blame those who caused the conflict, whether they caused it by attacking
another State or by conducting themselves in such a manner that the

1
Reproduced in Adam Roberts and Richard Guelff, Documents on the Laws of War
(rd edn., Oxford: Oxford University Press, ), p. .
 The Use of Force 
‘international community’ was obliged to intervene militarily to safeguard
international security, life, freedom, or other basic values.
Both criticisms have some force; but both are fundamentally flawed as
criticisms of the role that has been given to international law in the context
of the use of force. That role is based on the premise that there will be
occasions on which governments will consider the threat to fundamental
values, principles, and interests so great that lethal force must indeed be
used to protect and preserve them. But that is a very different matter from
saying that situations arise in which moral rules are suspended or inapplic-
able. Whatever one might think about the Vietnam war in the s and
s, or the intervention in Kosovo in , or the invasion of Iraq in
, it cannot be said that they were, taken as a whole, wanton acts of
violence, even if there were individual acts of wanton violence during the
course of each of those episodes. Those uses of force were all launched to
safeguard some value that was thought sufficiently important to warrant
asking or ordering people to die and to kill for. One might think those
values wrong, or the means chosen to advance them profoundly miscon-
ceived. The conflicts might be regarded as fundamentally immoral and
illegal, or as having involved disproportionate force, or in some other way
defective. But they were not unprincipled. And if force is used to secure or
advance values and principles, that force must itself be consistent with
those principles. It makes no sense to fight to preserve freedom by impos-
ing slavery on others; and it makes no sense to seek to preserve the ‘civi-
lized’ values of human dignity and human rights by the use of torture and
gratuitous and indiscriminate suffering. Whatever the moral justification
for the use of force might be, that moral justification will—if it is to be
coherent—entail limitations upon the circumstances in which force may
be used and the manner in which it is used. As it was put in the 
Instructions for the Government of Armies of the United States in the Field,
applied during the American Civil War, ‘Men who take up arms against
one another in public war do not cease on this account to be moral beings,
responsible to one another and to God.’
This view of the role of law in war has a long history, and is profoundly
rooted in moral argument, as Michael Walzer demonstrated in his
brilliant study Just and Unjust Wars. Until the twentieth century, the
regulation of war was one of the main concerns of international law, and

2
Article , <http://www.yale.edu/lawweb/avalon/lieber.htm#art>.
3
Michael Walzer, Just and Unjust Wars. A Moral Argument with Historical Illustrations
(rd edn., London: Allen Lane, ).
 International Law
one of the most ancient. In Chapter  of the book of Deuteronomy, some
of the Mosaic rules for the conduct of war are set out. One says:
When in the course of war you lay siege to a town for a long time in order to take it,
do not destroy its trees by taking an axe to them, for they provide you with food;
you must not cut them down.
Essentially the same rule appeared many centuries later in the Hague
Regulations on the Laws and Customs of War on Land, annexed to 
Hague Convention No. IV, where Article  provides that:
The occupying State shall be regarded only as administrator and usufructory of
public buildings, real estate, forests and agricultural estates belonging to a hostile
State and situated in the occupied country. It must safeguard the capital of these
properties, and administer them in accordance with the rules of usufruct.
The  Hague Regulations remain in force, under the umbrella of one
of the  Geneva Conventions on the Laws of War, and the principles
that they set out have applied to regulate the rights and duties of occupy-
ing forces such as the Israeli army in the Occupied Territories of Palestine
and the American and British forces in occupied Iraq. This rule of the Law
of Belligerent Occupation has applied in that part of the Middle East for
the best part of three millennia.
Other rules have a comparable antiquity. Rules against the killing of
prisoners appear as a settled part of the law of war, whose disregard at
Agincourt was censured. Heralds and envoys were regarded as inviolable,
and entitled to be treated well: ‘Don’t shoot the messenger’ has long been
as much a principle of the laws of war as it is of moral responsibility.
Underlying such rules are the twin principles of military efficiency
and economy of means. Those principles relate to the manner in which
force—war—is to be used. They are principles of the jus in bello, the
law that applies in a war, and regulates the conduct of the war. This body
of law is also known as the Law of Armed Conflict, or International
Humanitarian Law. The terms are synonymous; but with the decline
of classical learning ‘jus in bello’ may seem obscure, and ‘International
Humanitarian Law’ has a slightly Orwellian ring, to my ear—although the
latter term does emphasize one very important aspect
of this body of law, of rapidly growing importance, which is that in

4
Reproduced in Adam Roberts and Richard Guelff, Documents on the Laws of War (rd
edn., Oxford: Oxford University Press, ), p. .
5
See Shakespeare’s Henry V, Act , scene , lines -.
6
See Articles  to  of the  Hague Regulations on the Laws and Customs of War on
Land.
 The Use of Force 
modern conflicts the role and responsibilities of the armed forces are
likely to extend well beyond the cessation of fighting and into the period of
reconstruction and re-establishment of the social structure in areas
blighted by the fighting. I shall use the term ‘the Law of Armed Conflict’
(which is the title given to the current British manual of military law).
The rules of the Law of Armed Conflict do not address the question of
the circumstances in which it is permissible to go to war and to use force.
That question is addressed by the jus ad bellum, the law that regulates the
right to resort to war. The jus in bello and the jus ad bellum developed sep-
arately from one another as legal concepts, although the two bodies of
rules are closely related and there is a very long history of moral analysis of
the rightness of resort to war, epitomized by the ‘just war’ tradition. It was
only in the twentieth century that there arose specifically and distinctly
legal constraints upon the right of States to have resort to war, although
there had for many centuries been recognition of the need for a moral
justification for the waging of war. For this reason, it is convenient to con-
sider the two sets of rules in turn, dealing first with the law on the use of
force—the jus ad bellum—and then with the Law of Armed Conflict.

.     

 
Until the beginning of the twentieth century, the dictum of Clausewitz,
that war is the continuation of politics by other means, was an observation
as accurate as it was elegant. States had armies; and the armies were
instruments to be used. Not that the troops were unwilling. In a world still
without the excitement of radio or television, and with practically no
cinema, the army retained a certain glamour. British troops still wore scar-
let uniforms in battle in Africa in the s; and a cavalry charge promised
the incarnation of masculine virtue and the thrill of existential risk
combined with the prestige of self-sacrifice in the service of truth and
justice. The path of duty was the way to glory. People volunteered to fight
in their thousands. But human kind cannot bear too much reality. In the
annals of human tragedy and catastrophic misjudgement there are few
images as poignant as those of the crowds of young volunteers waving
from the troop trains as they set off for Flanders in , and the photo-
graphs of those same men as they faced the stupefying, incomprehensible,
carnage of battles such as the Somme, where a million casualties were

7
Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford
University Press, ).
 International Law
sustained—, British dead on the first day—in a horrific struggle in
which the front between the opposing armies was pushed across less than
eight miles of pulped earth in five months.
The decimation of an entire generation—and even in the s, there
were few in Europe who did not hear first-hand accounts of the horrors
of the Great War or of the losses of friends and family—galvanized gov-
ernments. There was a realization that the War represented a monumen-
tal failure of policy, diplomacy, and military strategy. Even before the end
of the War, United States’ President Woodrow Wilson declared in his
famous ‘Fourteen Points’ speech that the United States’ goal in the War
was that:
the world be made fit and safe to live in; and particularly that it be made safe for
every peace-loving nation which, like our own, wishes to live its own life, deter-
mine its own institutions, be assured of justice and fair dealing by the other
peoples of the world as against force and selfish aggression. All the peoples of the
world are in effect partners in this interest, and for our own part we see very clearly
that unless justice be done to others it will not be done to us.
In that context he called for the establishment of ‘a general association of
nations . . . under specific covenants for the purpose of affording mutual
guarantees of political independence and territorial integrity to great and
small states alike’. The product of that call was the League of Nations,
predecessor of the United Nations, whose Covenant was adopted in .
Ironically, the United States’ Senate refused to accept the Covenant, and
the United States never became a member of the League.
The Covenant was the first serious attempt to place general legal con-
straints upon resort to war. In the nineteenth century there had been
bilateral treaties in which the States Parties declared their eternal friend-
ship and renounced war with each other; but these had little practical
impact upon the development of international law. In , the Powers
of the day had concluded a Convention on the Pacific Settlement of
International Disputes (revised in  at The Hague Peace Conference),
which provided for various peaceful means of adjusting international
disputes. But war remained an option. For example, there were provisions

8
<http://usinfo.state.gov/usa/infousa/facts/democrac/.htm>; and in Franz Knipping,
Hans von Mangoldt, and Volker Rittberger, The United Nations System and its Predecessors
(Oxford: Oxford University Press, ), vol. II, p. .
9
e.g., Article I of the  Costa Rica–Nicaragua Treaty of Peace and Friendship, repro-
duced with other examples in William R. Manning, Arbitration Treaties Among the American
Nations (New York: Oxford University Press, ), p.  and passim.
10
See Kalevi J. Holsti, Peace and war: armed conflicts and international order –
(Cambridge: Cambridge University Press, ).
 The Use of Force 
on mediation of disputes by third parties; but Article  of the Convention
stated that:
The acceptance of mediation cannot, in default of agreement to the contrary, have
the effect of interrupting, delaying or hindering mobilization or other measures of
preparation for war.
Again in , the Powers had agreed ‘not to have recourse to armed force
for the recovery of contract debts claimed from the Government of one
country by the Government of another country as being due to its nation-
als’. That Convention effectively outlawed war as an instrument of debt
collection, bringing an end to episodes such as the  blockade of
Venezuela by Britain, Germany, and Italy in order to compel it to pay the
monies that it owed. The provision did not, however, apply if the debtor
State refused arbitration. But it was not until the conclusion of the League
Covenant that there was a substantial move to limit the right of States to
use force in their international relations.
Article  of the Covenant declared that ‘Any war or threat of war,
whether immediately affecting any of the Members of the League or not,
is hereby declared a matter of concern to the whole League’; and Article
 went on to stipulate that:
The Members of the League agree that, if there should arise between them any
dispute likely to lead to a rupture they will submit the matter either to arbitration
or judicial settlement or to enquiry by the Council, and they agree in no case to
resort to war until three months after the award by the arbitrators or the judicial
decision, or the report by the Council.
If a State failed to comply with this obligation, other Members of the
League were committed to sever all trade or financial relations with it. The
three-month cooling-off period was a start, supplemented soon after-
wards by the more absolute terms of the  Pact of Paris (the Kellogg-
Briand Pact), in which the States Parties:
solemnly declare in the names of their respective peoples that they condemn
recourse to war for the solution of international controversies, and renounce it, as
an instrument of national policy in their relations with one another.

11
Convention respecting the Limitation of the Employment of Force for the Recovery of
Contract Debts, , Article .
12
That crisis was ended by the reference of the claims against Venezuela to arbitration.
13
<http://www.yale.edu/lawweb/avalon/imt/kbpact.htm>;  Consolidated Treaty
Series ; and in Franz Knipping, Hans von Mangoldt, and Volker Rittberger, The United
Nations System and its Predecessors (Oxford: Oxford University Press, ), vol. II, p. .
 International Law
Similar obligations were undertaken by States in the Americas in the 
Saavedra-Lamas Treaty.
No-one should expect commitments of this kind to lead to an immedi-
ate and total change in State behaviour. As long as States have armed
forces the temptation to use them against other States will remain, and
occasionally prove irresistible. And States will always retain armed forces
of some description because there is no clear difference between the kind
of personnel and equipment needed to preserve internal law and order,
and to cope with natural or man-made disasters, and for defensive pur-
poses, and those needed to attack other States. What the Pact of Paris did
do was signal an intention to change strategies and to prepare, through the
development of diplomacy and processes for managing conflict, for the
pursuit of national goals through means not involving the use of force.
Sadly, even in this limited sense it was a failure. The s saw the invasion
of Manchuria by Japan in  at what might be regarded as the start of a
Pacific War that continued until , and a more quixotic invasion of
Abyssinia by Italy in , as well as the invasions of Czechoslovakia and
Poland by Germany. Japan, Italy, and Germany were all parties to the Pact
of Paris. The League of Nations was powerless to prevent those episodes,
or to force the withdrawal of the invaders.

.   

After World War Two, no rational person could think either that the
Covenant and the Pact of Paris had been successful, or that governments
should simply give up the attempt to constrain international violence. The
only sensible option was that advocated by Samuel Beckett: ‘Try Again.
Fail again. Fail better.’ And try they did. And in the face of the failure of
the provisions in the Covenant and the Pact, they aimed higher. There is
much cynical criticism of the United Nations; but it should not be forgot-
ten that the people who built it, and framed the provisions of the Charter,
were people who not only knew what war was like—and were, indeed,
drafting the Charter during the War—but also knew what failure and cyni-
cism were. They had experienced at first hand the failure of League, but
with a vision and determination that puts many in later generations to
shame they built a global organization and an international order that has
lasted for more than sixty years and, whatever its failings, has undoubtedly
‘failed better’ than anything that went before it.

14
<http://www.yale.edu/lawweb/avalon/intdip/interam/intam.htm>.
 The Use of Force 
The United Nations Charter contained a clear and absolute prohibition
on the unilateral use of force, except in self-defence. Article () stipulates
that:
All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.
Not only attacks on the territory of States but also attacks on manifest-
ations of the State, such as its warships, military aircraft, and armed
forces, fall within the prohibition. The rights and security of States were
secured by two other provisions. One permitted the United Nations
Security Council to authorize the use of force; and the other permitted
States to take action to defend themselves in the period before the
Security Council takes measures necessary to maintain international
peace and security. The drafters of the Charter envisaged that the UN
would have armed forces permanently at its disposal and that the fifteen-
State Security Council (including the five veto-wielding Permanent
Members—China, France, the UK, the USA, and the USSR) would
decide upon their deployment if the use of armed force was considered to
be necessary. Those UN forces never materialized. In the tense atmos-
phere of the Cold War, States were unwilling to relinquish control over
any part of their armed forces or to add to their defence spending in order
to establish an independent force which might be used against them, their
allies, or their protégés.

.    

   
The Charter structure remains as it was originally drafted, and the UN still
has no armed forces permanently at its disposal. But within that framework
it retains a very wide range of powers. Under ChapterVI of the Charter the
Security Council may investigate any situation which might lead to inter-
national friction or give rise to a dispute; and any Member may take such a
situation to the Council. The Council may make recommendations for the
handling of the situation, and frequently does so. It sends missions to areas
of crisis, collects and considers facts, and recommends ways to contain or
resolve crises. If the Council determines that a situation constitutes a
‘threat to the peace, breach of the peace, or act of aggression’ it may exer-
cise its powers under Chapter VII of the Charter. Under Article , it may
decide to order measures not involving the use of armed force, such as the
 International Law
mandatory economic sanctions first imposed in  in relation to the
white minority Government in Rhodesia (now Zimbabwe) which unilat-
erally declared its independence of the United Kingdom. UN Member
States are legally bound, under Article  of the Charter, to accept and
carry out such decisions of the Council. And ultimately, under Article ,
it ‘may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security’.
The Council has found threats to the peace even in matters that may
appear to be purely internal. For example, it determined that the failure to
reinstate Jean-Bertrand Aristide, who had been elected as President of
Haiti in a  poll monitored by UN observers but was removed from
power in , amounted to such a breach, and over the following months
the UN sent in a special representative of the Secretary-General, author-
ized a joint human rights mission with the Organization of American
States, and imposed arms and oil embargoes on Haiti.
The Security Council has made extensive use of its powers under
Chapters VI and VII of the Charter. It has established fact-finding or other
missions, such as observer missions to monitor elections and peacekeep-
ing missions to monitor truces. This may sound a weak and ineffectual
move, but often it is not. A clear report, accepted by the UN, on a situ-
ation, which identifies the problems and those responsible for them and
suggests an approach to the management of the crisis, can rapidly become
the focus upon which the policies of States become aligned. The UN can
thus help to form and articulate the policy that will be pursued by the
international community. Decisions to use armed force have been much
rarer. The first occurred in  when the absence of the Soviet delegate
from the Security Council made it possible to adopt a resolution recom-
mending Member States to make ‘forces and other assistance available to
a unified command under the United States of America’ in Korea. The
ability of the United Nations to take ‘measures necessary to maintain
international peace and security’ involving the use of force was impeded
for many years during the Cold War by the actual or potential operation of
the veto of the Permanent Members. (The General Assembly asserted
its residual right to act in this field in the  ‘Uniting for Peace’ reso-
lution, but it could only take initiatives such as the establishment of

15
SC resolution  (); and see resolutions  () and  (): <http://
www.un.org/Docs/sc/unsc_resolutions.html>.
16
Vetoes had been cast  times by early , mostly by the USA and the USSR. The pat-
tern is interesting. In the period  to  the veto was cast  times by the USSR, and 
times by the USA. In the period  to  the figures are USSR/Russia  vetoes, USA .
17
UNGA Resolution (V).
 The Use of Force 
peacekeeping forces, which do not involve enforcement action.) Armed
action was not authorized again until  when, in resolution , the
Council authorized ‘Member States acting in co-operation with the
Government of Kuwait’ to use ‘all necessary means’ to secure the with-
drawal of the Iraqi forces which had invaded Kuwait, and the restoration
of international peace and security in the area.
Some people argued, and perhaps believed, that the invasion of Iraq by
the ‘coalition of the willing’ led by the United States and the United
Kingdom in  was justified on the basis that the  mandate was
‘revived’ when Iraq defied the international community by not admitting
possession of, or allowing international inspectors to search for, the
weapons of mass destruction which the United States and Britain
wrongly insisted that it possessed. The argument, aptly described by Lord
Steyn as scraping the barrel, is fatuous: no-one could reasonably sup-
pose that the  Security Council resolutions lay dormant, like the
seeds of exotic plants in the desert, until some State which happened to be
a veteran of the  Kuwait conflict might decide to water them back into
bloom. The whole point of the UN system is that when the Security
Council is seised of a problem it is the Council, and not individual
Member States, that has the right to control matters. If the Security
Council had intended that the United States, the United Kingdom and
others should invade Iraq in  with its blessing and its mandate, it
would have said so. It did not.
The Security Council also has a prominent and distinctive role in inter-
national peacekeeping. Unlike the Korean and Kuwait operations, the
forces involved in peacekeeping operations are not engaged in enforce-
ment action. They have very limited mandates, and may not use force to
impose solutions. The troops committed to these peacekeeping forces,
familiar in many parts of the world from their blue helmets, operate with
the consent of the State or States where they are based (and must leave if
that consent is withdrawn) and attempt simply to maintain the peace by
standing between opposing forces. They are accompanied by UN uni-
formed police and military observers and by civilian personnel. By 
the UN had established  peacekeeping operations of which  were still
in existence, in places such as Cyprus (UNIFCYP), Kosovo (UNMIK),
Lebanon (UNIFIL), and Sudan (UNMIS), the longest-serving being the
United Nations Truce Supervision Organization (UNTSO) Middle East.
Over , military and police personnel and over , civilian per-
sonnel were deployed on UN peacekeeping missions in , with

18
A distinguished retired Law Lord, and chairman of Justice, the civil rights group.
 International Law
Pakistan, Bangladesh, and India the largest contributors of troops. This is
almost ten times the number deployed in the s, during the final years
of the Cold War, and reflects the dramatic changes in international politics
since . Peacekeeping costs are shared among UN Members according
to a scale roughly reflecting their wealth: among the top ten contributors
China pays about %, Canada %, Japan %, the United States %,
and six members of the European Union together pay %.
The study of the efforts of the Security Council, and of the General
Assembly and the informal network of discussions in the UN cafeterias
and Embassy reception rooms with which the work of the Security
Council is intimately connected, gives a fascinating insight into the subtle
complexity of politics as the art of the possible. To outsiders it may appear
bewildering and unprincipled. Why does the UN act in some circum-
stances but not in others? Why does it not act sooner or more decisively to
put a stop to blatant instances of aggression? Why do States sometimes
choose to act outside the UN framework? There are answers to all of these
questions, usually rooted in political considerations. In this field perhaps
above all others, the UN, and in particular the Security Council, tends not
to be very legalistic: it is more concerned to do what a working majority of
Members considers to be right and desirable than to fit its actions within
lawyers’ categories. That said, it is constantly trying to streamline its
internal structures and procedures, in so far as it can within the overall
Charter framework. Strategic reviews of peacekeeping appeared in the
Secretary-General’s  Report Agenda for Peace and its more cautious
 Supplement, written in the light of the UN experience in Somalia
and the Former Yugoslavia. They show an acute awareness of the practical
limitations on what the UN can do, as long as it has no forces committed
to it by Member States and at its disposal. And they advance a view—
surely correct—of peacekeeping as only one aspect of a broader effort.
Taking to heart Galgacus’ criticism of the Romans, that they make a desert
and call it peace, the UN is clearly committed to the view that peace can-
not be built only by dropping bombs. There is a need for preventive diplo-
macy, which seeks to avert armed conflict, and for long-term reconstruction

19
<http://www.un.org/Docs/SG/agpeace.html>.
20
<http://www.un.org/Docs/SG/agsupp.html>.
21
The  Supplement noted (in paragraph ) that ‘when in May  the Security Council
decided to expand the United Nations Assistance Mission for Rwanda (UNAMIR), not one
of the  Governments that at that time had undertaken to have troops on stand-by agreed to
contribute.’
22
According to Tacitus, the words of the Caledonian chief Galgacus before his great battle
with the Romans in  AD. Galgacus lost.
 The Use of Force 
and post-conflict peace-building efforts, as the horrific consequences of
the blundering invasion of Iraq in  have made painfully clear.

. -
The Security Council will inevitably take time to respond to a crisis, and it
cannot be supposed that States have no right to defend themselves in the
meantime. The final Article in ChapterVII (‘Action with respect to threats
to the peace, breaches of the peace, and acts of aggression’) is Article ,
which stipulates that:
Nothing in the present Charter shall impair the inherent right of individual or col-
lective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of
this right of self-defence shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems neces-
sary in order to maintain or restore international peace and security.
There has been a great deal of discussion about the precise limits of
the right of self-defence, much of it the result of a combination of a near-
theological reverence for the formulation of the right in the context of the
 Caroline episode and a suspension of common-sense. In the winter of
 a group of rebels against British rule in North America hired the
steamboat Caroline, apparently intending to use it in a raid against
Canada. The British militia seized it at its mooring on the Niagara River,
set fire to it, and sent it over the Niagara Falls. An American, Amos Durfee,
was killed. One of the militiamen, Alexander McLeod, later visited New
York and bragged of his role in the episode. He was arrested and charged
with murder. Britain had objected strongly to his arrest, asserting that
those acting as part of the military forces of a government could not be
prosecuted for their acts. It accepted responsibility for McLeod’s actions
while arguing that the action was justified as a matter of international law.
Although Britain said that if McLeod were executed there would be war
between the two States, the United States was powerless to act because
the state of New York would not back down. McLeod was acquitted
at his trial in . The episode was brought to a close by the 
treaty concluded by the US Secretary of State Daniel Webster
and the British Foreign Secretary Lord Ashburton; but it is the heated

23
<http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-.htm>.
 International Law
correspondence between the United States and Great Britain for which
the episode is chiefly remembered. Webster wrote that the British action
would be justified only if Britain could show ‘a necessity of self-defence,
instant, overwhelming, leaving no choice of means, and no moment for
deliberation’, and also that it ‘did nothing unreasonable or excessive, since
the act justified by the necessity of self-defence, must be limited by that
necessity and kept clearly within it’. While Britain and the United States
differed over the question whether these criteria were met, they both
accepted the essence of this definition of self-defence.
There are two critical elements in the Caroline formula: the lack of any
alternative to the use of force, and the need for the force used in self-
defence not to be excessive. Over-literal readings of the formula have led
some commentators to suggest that a State must wait until an attack has
actually been launched against it before it can respond, and that there is no
right of anticipatory self-defence, such as Israel invoked in the Six-Day
war. In the weeks before Israel’s attack on its Arab neighbours Egypt had
required the withdrawal of the UN peacekeeping force from the Sinai
peninsula and ships carrying cargoes bound for the Israeli port of Eilat in
the Red Sea had been blockaded. It is apparent that both Israel and its
Arab neighbours were instructed by their respective protecting super-
powers not to fire the first shot, so that when they did use the force for
which they were so obviously preparing they could claim to be acting in
self-defence. Israel moved first, and won a remarkable military victory.
That war illustrates perfectly the need for preventive diplomacy. Once the
idea that an attack was imminent gained hold, each side was bound to pre-
pare to repel an attack (or an anticipatory act of self-defence) from the
other; and as preparations proceeded a point was bound to come at which
one State would consider that it could wait no longer without serious risk
that its military capacity and ability to defend itself would be destroyed.
The right of self-defence cannot require a State to await an actual attack
before lifting a finger to defend itself—though it certainly requires the
most serious efforts to avert the use of force.
This much is clear. But the implications of it in a world of threats from
sophisticated weapons launched at great distances from their targets and
from terrorist cells hiding among civilian populations are significant and
not wholly comfortable. Take, for example, the case of a group of people

24
<http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-d.htm>.
25
Pyrrhic, perhaps. It is the territorial gains made by Israel in  that are the fundamental
cause of the continuing Middle East crisis over Palestine.
 The Use of Force 
believed to have planned and about to execute a nerve gas attack on an
underground transport system somewhere in Europe, and known to be
meeting in a remote location in one State. The target might be London,
Paris, Madrid, Moscow, or some other city. The United Kingdom, France,
Spain, Russia, and others are all vulnerable, but each is more likely not to
be the target. If the group is about to split up, one of them carrying the
nerve gas to its target and the others going to other destinations, and if
the State in whose territory they are meeting is unable or unwilling to act
sufficiently quickly and decisively to track and detain them all, can no
other State act? Must each of the potential targets wait, and hope that it
can arrest them if and when they enter its territory?
A broad answer to that question is given in the United States’ National
Security Strategy , where it is said that ‘under long-standing prin-
ciples of self defense, we do not rule out the use of force before attacks
occur, even if uncertainty remains as to the time and place of the enemy’s
attack’. This doctrine of pre-emption has been represented as a policy
of dealing with threats before they become threats. The concern is not
simply that it might be used as an excuse for specific uses of force that are
shown in retrospect not to have been justified, but rather that the assertion
of the right to take pre-emptive action is in effect an assertion of a perman-
ent right to intervene with force in third States by the handful of States
that have the technology and equipment to enable them to do so. Put
crudely, it is seen as an arrogation to the United States of the powers of a
world policeman, and it is feared as a manifesto for vigilante violence.
These concerns were reflected in a remarkable analysis of the right of self-
defence by the Attorney-General for England. Having quoted Article 
of the Charter, he said that ‘international law permits the use of force in
self-defence against an imminent attack but does not authorise the use of
force to mount a pre-emptive strike against a threat that is more remote’.
The statement was plainly intended to distance the United Kingdom
from the United States’ position on pre-emption, even though the British
Prime Minister had advanced in his March  Sedgefield speech
an even wider doctrine permitting States—or at least the United
Kingdom—to use force in the face of ‘the risk of [the] new global
terrorism and its interaction with states or organisations or individuals

26
<http://www.whitehouse.gov/nsc/nss//> at p. . The notion was first developed
in the  National Security Strategy, <http://www.whitehouse.gov/nsc/nss//
index.html>.
27
Hansard, House of Lords Debates,  April , col. ;  BYIL , at  ().
 International Law
proliferating [Weapons of Mass Destruction]’, which he described as a
risk that ‘I simply am not prepared to run’, adding that ‘this is not a time
to err on the side of caution.’ But the Attorney’s more clear-thinking and
precise speech identified common ground in the need for the develop-
ment of concept of what constitutes an ‘imminent’ armed attack to meet
new circumstances and new threats. There is much to be said for inter-
preting the requirement of imminence to mean that action may be taken
only at the last reasonable opportunity to take effective action to avert the
threat, even if in some cases that opportunity arises a considerable time
before the actual attack is expected to occur. That is, underneath the lan-
guage, what the Caroline correspondence was actually getting at.
It is sometimes asked whether the right of self-defence exists in relation
to attacks from ‘non-State actors’ such as terrorists. The question was
fuelled by a passage in the Advisory Opinion of the International Court of
Justice in the Wall case which stated that Article  of the Charter ‘recog-
nizes the existence of an inherent right of self-defence in the case of armed
attack by one State against another State.’ The position cannot be ser-
iously doubted. Self-defence is an inherent right; and the right exists when-
ever one is attacked, whether by a State army or by an individual terrorist.
The question is, what action may be taken? No-one doubts that in
September  the United States would have been entitled to shoot down
the aircraft flying towards the World Trade Centre, if that was the only
way of stopping the suicidal terrorist attacks. Even if it were established
that the attack had been planned and controlled from Al-Qaeda bases in
Afghanistan, however, that right of self-defence would not have justified an
attack on Afghanistan itself as a State. On the other hand, if further attacks
emanating from Afghanistan were ‘imminent’—as that requirement is now
interpreted—and the government of Afghanistan was unable or unwilling
to prevent them, the right of self-defence would justify an attack on those
people and facilities in Afghanistan in order to prevent such attacks. The
emphasis is on prevention: it is perfectly clear that international law does
not permit the use of force in revenge, to punish, or to deter future attacks.
The line between deterrence and prevention is difficult to draw: but the
important point is that international law gives no warrant to States to use
violence to terrify those whom it fears may be disposed to attack it in order
to give them a taste of what they might expect if an attack is executed.

28
<http://www.pm.gov.uk/output/Page.asp>.
29
He added that ‘It has never been the position of the Government that the military action
against Iraq was legally justified on grounds of “pre-emptive self defence”.’
30
ICJ Reports , p. , at paragraph .
 The Use of Force 
The requirement of proportionality is similarly fundamental to the
right of self-defence. Self-defence is the right to defend the State, not an
opportunity for unrestrained violence against one’s enemies. The scale of
the  Israeli attack on Lebanon and the widespread destruction that it
caused, after the abduction of two Israeli soldiers and several years of sui-
cide bomb attacks on Israeli targets, attracted considerable international
criticism on this ground, even from those who were satisfied that Israel was
justified in using force. But it is not easy to pin down what the requirement
of proportionality entails. Is the degree force used to be calibrated against
the scale of violence that would occur if the threat against which the State
is defending itself were to be realized? Or is it to be measured against the
force that is necessary to avert the attack? These two approaches (and
others could be formulated) might yield very different results. One State
may threaten the use of force against another but be unable to bring suffi-
cient military power to bear to cause more than minor damage; but it might
be so committed to the attack that it would take massive force to prevent or
deter it: another State may threaten massive destruction from an attack,
but be easily deterred by a symbolic display of force.
Self-defence may be exercised individually or collectively. Collective
self-defence pacts are not uncommon. NATO, the North Atlantic Treaty
Organization, is probably the best-known and most developed organiza-
tion. Article  of the  NATO treaty stipulates that:
The Parties agree that an armed attack against one or more of them in Europe or
North America shall be considered an attack against them all and consequently
they agree that, if such an armed attack occurs, each of them, in exercise of the
right of individual or collective self-defence recognised by Article  of the
Charter of the United Nations, will assist the Party or Parties so attacked by taking
forthwith, individually and in concert with the other Parties, such action as it
deems necessary, including the use of armed force, to restore and maintain the
security of the North Atlantic area.
In eastern Europe the Warsaw Pact was established in  to balance
NATO. In the Pacific, the ANZUS treaty was signed in , establishing
a collective self-defence agreement between Australia, New Zealand, and
the United States. Until , when New Zealand distanced itself from
ANZUS because of disagreements with the United States over nuclear
weapons, that agreement overlapped with the  Five Power Defence

31
<http://www.nato.int/home.htm>.
32
<http://www.nato.int/docu/basictxt/treaty.htm>.
33
<http://www.php.isn.ethz.ch/>.
34
See <http://australianpolitics.com/foreign/anzus/>.
 International Law
Arrangements between the United Kingdom, Australia, New Zealand,
Malaysia, and Singapore; and it also overlapped with SEATO—the
South East Asia Treaty Organization—to which Australia, France, New
Zealand, Pakistan, the Philippines, Thailand, the United Kingdom, and
the United States were Parties before its demise in . Other similar
groupings included CENTO, the Central Treaty Organization, which
existed in the Middle East until , and the  Rio Pact in the
Americas, which still exists. There are many other formal and informal
military agreements of a broadly similar kind. Some of these alliances have
been invoked. For example, the United States invoked the Rio Pact after
the  terrorist attacks, and Australia invoked the ANZUS treaty after
the  Bali nightclub bombings. Above all, NATO has functioned as a
real military alliance. The collective self-defence provision of Article  of
the NATO Treaty was invoked in  after the attacks on the United
States. Those invocations were true examples of collective self-defence,
because all of the States concerned were in some measure under a com-
mon threat and they decided to act collectively in their efforts to defend
themselves against it. Sometimes the matter is less clear. Judge Jennings
observed, in a typically trenchant passage in his dissenting judgment in
the Nicaragua (Merits) case, that the law does not authorize vicarious
defence by States acting as authorized champions of victim States. ‘The
assisting State’, he wrote, ‘surely must, by going to the victim State’s assist-
ance, be also . . . in some measure defending itself.’ However sound that
view may be as a matter of legal theory, the notion of the defence of a
State’s interests is now so broad that it is difficult to see circumstances
where a court would strike down a use of force on the basis that although a
victim State was being protected the protecting State was not itself under
threat.

.  

In his celebrated (and well-balanced) legal advice dated  March  on
the legality of the use of force in Iraq, the English Attorney-General
stated that there are generally three possible bases for the use of force by
States under international law. Two, UN authorization and self-defence,

35
See <http://www.austlii.edu.au/au/other/dfat/treaties//.html>.
36
<http://www.oas.org/juridico/english/Treaties/b-.html>.
37
<http://www.nato.int/docu/pr//p-e.htm>.
38
ICJ Reports , p.  at p. .
39
<http://www.ico.gov.uk/upload/documents/library/freedom_of_information/
notices/annex_a_-_attorney_general’s_advice_.pdf>.
 The Use of Force 
I have discussed. There is also a right to use force, he said, ‘exceptionally,
to avert overwhelming humanitarian catastrophe’. The UK claimed to be
acting on the basis of this right when it used military force in Kosovo in
. No such right was clearly established by State practice. States
could give non-discriminatory humanitarian relief, dropping blankets
and food parcels to those in need. States had also often acted to protect and
rescue their own nationals abroad. But the very limited nature of the
threat or use of force in those contexts is better viewed as being primarily
a (defensible) infringement on the duty of non-intervention in the internal
affairs of other States. Kosovo was different. It envisaged the use of mas-
sive military force (over , sorties were flown during the NATO
bombing campaign) in a foreign State for the protection of the citizens of
that State. Opinion on the legality of that intervention was divided.
Some pointed out that there is no hint of any right of humanitarian inter-
vention in the UN Charter, and urged caution in slackening the con-
straints upon the unilateral use of force in international relations. Others
took the view that if the United Nations was unable to act in the face of
outrages such as the  Srebrenica Massacre and the continuing ‘ethnic
cleansing’ in the Balkans, there may come a point where moral imperatives
eclipse the lack of any legal foundation for unilateral intervention—a
point at which neighbouring States can no longer sit by and watch the
calculated slaughter of thousands of civilians, but must act in the name of
elementary imperatives of humanity. NATO States took the view that
where there is an imminent humanitarian catastrophe which can be
averted by the use of force and only by the use of force, and where there
has been a prior determination by the Security Council of a grave crisis
threatening international peace and security and an articulation by the
Council of policies for the resolution of the crisis, States acting collect-
ively through a body such as NATO are justified in intervening with the
use of force even in the absence of Security Council authorization. An
argument might be made out for the view that the law should leave matters
as they are, and tolerate but not condone interventions of this kind, leav-
ing them resting on a moral rather than a legal justification. It might be
said that condoning such interventions will only encourage the unilateral
use of force. Whatever one thinks of that consequentialist view, it would
surely be a grave misunderstanding of the role and function of inter-
national law to assert that because the UN Charter gave States no legal

40
See <http://www.kosovo.mod.uk/account/nato.htm> and <http://www.nato.int/
kosovo/kosovo.htm>.
41
See the discussion at  ICLQ – ().
 International Law
right to act without United Nations’ authorization in the face of a humani-
tarian catastrophe those States ought to have remained as inactive as the
United Nations itself.

.     

International law does not forbid the use of armed force. Force may lawfully
be used with United Nations authorization, in self-defence, and perhaps in
exercises of humanitarian intervention. But even when there is an occa-
sion on which force may lawfully be used, the law constrains the degree
and kind of force that may be used. These constraints are the concern of
the Law of Armed Conflict or jus in bello. There are two broad categories
of rules. One contains the rules relating to the means and manner of fight-
ing; the other contains the rules relating to the rights and duties of States
which remain neutral and do not themselves participate in the hostilities.
There is a substantial body of detailed rules on the conduct of hostilities.
Such rules have existed for centuries. Prohibitions on the use of certain
weapons appear in the Laws of Manu, compiled around , years ago:
‘When he fights with his foes in battle, let him not strike with weapons
concealed (in wood), nor with (such as are) barbed, poisoned, or the points
of which are blazing with fire.’ The laws of war were finely developed in the
medieval codes of chivalry. But the modern rules are the product of a suc-
cession of codification efforts from the mid nineteenth century onwards,
particularly those inspired by the work of Henry Dunant after he witnessed
the untended suffering of the huge number of casualties of the battle of
Solferino in  and founded what became the International Committee of
the Red Cross. Though not the first, the conventions produced by the
 Hague Peace Conference are probably the most important, because
they mark the beginning of attempts to set out a comprehensive, binding set
of rules of universal application in war. They are the lineal ancestors of the
 Geneva Conventions on the Laws of War which, together with their
 Additional Protocols, form the basis of the modern law of war.
War—armed conflict—has a radical legal effect. Combatants in States’
armed forces may kill and destroy property within the laws of war without

42
Laws of Manu, chapter VII, line .
43
See the studies by Theodor Meron, Henry’s Wars and Shakespeare’s Laws (Oxford:
Clarendon Press, ), and Bloody Constraint: War and Chivalry in Shakespeare (New York;
Oxford: Oxford University Press, ).
44
See <http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm>.
45
See the  Declaration of Paris, the  Lieber Code, the  Red Cross Convention,
and the  Declaration of St Petersburg, all at <http://www.yale.edu/lawweb/avalon/
lawofwar/lawwar.htm>.
 The Use of Force 
fear of facing trial for murder or criminal damage. That is the privilege
that the law of war confers, and one reason why it is so important that in
the debate on the so-called wars against terror or against drugs a clear
eye is kept on the fact that they are not true wars but simply large-scale
campaigns against very serious criminal conduct. Given the licence to kill
that war confers, it is natural that the conduct of warfare should be the
subject of close regulation. Many of the rules are technical, but most of
them are based upon four fundamental principles. First there is the prin-
ciple of military necessity. This is set out in the British Manual on the Law
of Armed Conflict in the following terms:
Military necessity permits a state engaged in an armed conflict to use only that
degree and kind of force, not otherwise prohibited by the law of armed conflict,
that is required in order to achieve the legitimate purpose of the conflict, namely
the complete or partial submission of the enemy at the earliest possible moment
with the minimum expenditure of life and resources.
Second, there is the principle of humanity, which ‘forbids the infliction of
suffering, injury or destruction not actually necessary for the accomplish-
ment of legitimate military objectives’. Third is what is sometimes
known as the principle of discrimination. That is to say, the principle that
military operations are to be conducted only against the enemy’s armed
forces and military objectives, and that there must be a clear distinction
between armed forces and civilians (between combatants and non-
combatants), and between objects that are legitimate targets of attack and
objects that are protected from attack. Fourth is the principle of propor-
tionality, which ‘requires that losses resulting from a military action
should not be excessive in relation to the expected military advantage’.
These principles are applicable in all situations of armed conflict.
A good example of their application is the pocket card issued to United
States’ forces during Operation Desert Storm, in which Iraqi forces were
driven out of Kuwait in . The card read as follows:
ALL ENEMY MILITARY PERSONNEL AND VEHICLES TRANS-
PORTING THE ENEMY OR THEIR SUPPLIES MAY BE ENGAGED
SUBJECT TO THE FOLLOWING RESTRICTIONS:

A. Do not engage anyone who has surrendered, is out of battle due to sickness or
wounds, is shipwrecked, or is an aircrew member descending by parachute
from a disabled aircraft.
46
UK Ministry of Defence, Manual on the Law of Armed Conflict (Oxford: Oxford
University Press, ), paragraph ..
47
ibid., paragraph ..
48
ibid., paragraph ..
49
ibid., paragraph ..
 International Law
B. Avoid harming civilians unless necessary to save U.S. lives. Do not fire into
civilian populated areas or buildings which are not defended or being used for
military purposes.
C. Hospitals, churches, shrines, schools, museums, national monuments, and
other historical or cultural sites will not be engaged except in self defense.
D. Hospitals will be given special protection. Do not engage hospitals unless the
enemy uses the hospital to commit acts harmful to U.S. forces, and then only
after giving a warning and allowing a reasonable time to expire before engaging,
if the tactical situation permits.
E. Booby traps may be used to protect friendly positions or to impede the
progress of enemy forces. They may not be used on civilian personal property.
They will be recovered and destroyed when the military necessity for their use
no longer exists.
F. Looting and the taking of war trophies are prohibited.
G. Avoid harming civilian property unless necessary to save U.S. lives. Do not
attack traditional civilian objects, such as houses, unless they are being used by
the enemy for military purposes and neutralization assists in mission accom-
plishment.
H. Treat all civilians and their property with respect and dignity. Before using
privately owned property, check to see if publicly owned property can substi-
tute. No requisitioning of civilian property, including vehicles, without per-
mission of a company level commander and without giving a receipt. If an
ordering officer can contract the property, then do not requisition it.
I. Treat all prisoners humanely and with respect and dignity.
J. ROE Annex to the OPLAN provides more detail. Conflicts between this card
and the OPLAN should be resolved in favor of the OPLAN.

REMEMBER

. FIGHT ONLY COMBATANTS.

. ATTACK ONLY MILITARY TARGETS.
. SPARE CIVILIAN PERSONS AND OBJECTS.
. RESTRICT DESTRUCTION TO WHAT YOUR MISSION REQUIRES.
The principles are implemented in much greater detail by the provi-
sions of the four  Geneva Conventions, ((I) on the Sick and Wounded
in the Field; (II) on the Wounded, Sick and Shipwrecked at Sea; (III) on
Prisoners of War; and (IV) on the Protection of Civilian Persons in Time of
War) and their two  Protocols (Protocol I on Victims of International

50
(US) Operational Law Handbook , <http://www.fas.org/irp/doddir/army/
law.pdf>, p. . The ‘ROE’ are the Rules of Engagement and ‘OPLAN’ is the operational
plan. The Handbook contains other examples of instructions issued to troops.
 The Use of Force 
Armed Conflicts, and Protocol II on the Protection of Victims of Non-
International Armed Conflicts).
The rules on the conduct of hostilities are widely observed as a matter
of professional discipline and training. Certainly, States are obliged ‘to
respect and ensure respect’ for the Geneva Conventions, and the inculca-
tion of their principles is (or at least should be) a basic part of the training
of all members of the armed forces. Breaches of the laws of war are serious
offences, punishable by the soldier’s own State, through courts martial or
through the civilian courts. Serious breaches fall within the jurisdiction of
the International Criminal Court, which could in principle prosecute
those offences if national courts of States Parties failed to do so.
The application of the principles and the rules that implement them is
not a straightforward matter. The distinction between military and civil-
ian targets is particularly problematic. Tractors may be designed to pull
ploughshares, but they can also pull artillery. What if opposing troops set
up a mortar emplacement next to, or even in, a school yard or hospital car
park? What if opposing troops hide in densely packed civilian residential
areas? What if, contrary to the laws of war, those engaged in an armed
attack do not distinguish themselves from the civilian population by
wearing uniforms, or consciously disguise themselves as civilians? These
are not mere legal conundrums. They are practical problems facing
members of the armed forces, and the answers are literally matters of life
and death for them and for those who might be killed by their weapons.
One might, indeed, ask whether the actual effect of the rules of the laws of
war is in practice to minimize casualties—the kind of question that crim-
inologists would answer in respect of criminal law; but, perhaps surpris-
ingly, international law does not often engage in such empirical inquiries
into its effects.
The treatment of suspected terrorists, in particular, has caused great
difficulty. Some have been detained on battlefields in Afghanistan, but then
denied the treatment required under the Geneva Conventions for prison-
ers of war. The detention of a large but unknown number of them by the
United States in Guantanamo Bay has been a source of much criticism of
the United States. There is some force in the observation that the Geneva
Convention provisions on prisoners of war were aimed at regular uni-
formed troops, and not at fighters who are indistinguishable (at least to

51
i.e., internal, civil wars.
52
The texts are published at <http://www.icrc.org/eng>.
53
And the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for
Rwanda (ICTR). For the ICC see <http://www.icc-cpi.int/home.html&l=en>.
 International Law
western forces) from the civilian population. The classification by the
United States of many of the detainees as ‘unlawful combatants’ tends to
lead to them being denied both the rights of prisoners of war and also the
rights of people detained under the criminal law. While most analysts
accept that such fighters cannot be treated simply as regular combatants or
as criminals, there is equally no doubt that, as human beings, they are enti-
tled to a certain minimum level of treatment. Most lawyers take the view
that rights set out in Article  of Additional Protocol I represent the irre-
ducible minimum of rights that ‘unlawful combatants’ must be granted.
Indeed, Article  says that its provisions apply to all persons ‘who are in
the power of a Party to a conflict and who do not benefit from more
favourable treatment’. Those rights include freedom from murder, torture,
outrages upon personal dignity, and collective punishment, as well as basic
due process rights. It is sometimes said that the  Geneva Conventions
are outdated and cannot accommodate the harsh realities of the modern
world. But before they are abandoned it is well to recall that they were
drafted by men and women who knew very well—better than most mod-
ern politicians—what the harsh realities of war truly are.
The Geneva Conventions are by no means the only agreements relevant
to the laws of war. There are treaties regulating the weapons that may be
used: for example, the  UN Convention on Conventional Weapons,
which has protocols dealing with weapons which cause injury by frag-
ments not detectable by x-ray, on mines and booby trap devices, on incen-
diary weapons, on blinding laser weapons, and on the removal of explosive
remnants of war—the last addressing the grave problem of cluster bombs
and other explosive devices which are left in war zones and continue to
cause injury and death for many years after the cessation of hostilities.
Other treaties deal with biological and chemical weapons, nuclear
weapons, and anti-personnel mines. There are, too, treaties that deal with
the manner in which warfare is conducted. One, adopted in , seeks to
protect cultural property in the event of armed conflict. Though widely
ratified it appears to have been poorly applied during the  invasion of
Iraq. Another treaty prohibits environmental modification as a weapon of
war. Nuclear weapons have attracted particularly extensive regulation,
relating to all stages of their production, testing, and deployment. The
possession and use of nuclear material is overseen by the International

54
The  Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict, published at <http://www.icomos.org/hague/>.
55
The  UN Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification.
 The Use of Force 
Atomic Energy Authority, whose inspectors monitor national programmes
to ensure that material is not diverted from civil nuclear energy programmes
to military uses and thus supervise crucial aspects of the  Non-
Proliferation Treaty (NPT). With its  States Parties the NPT is the
most widely ratified of all disarmament treaties. In addition, there are
treaties that have sought to diminish the risk of conflict by limiting the
quantity of arms held by States—an approach that enjoyed much favour
and little success in the early part of the twentieth century. The Strategic
Arms Limitation Treaties, and the treaty on Conventional Armed Forces
in Europe are among the best known examples.
The second body of rules of the Laws of War concern neutrality. In the
past, States that have remained neutral in armed conflicts have benefited
from certain rights, notably the right not to be targeted by the belligerents.
In return neutrals were obliged to observe strict impartiality as regards the
belligerents, and not to allow the use of their territory as bases for the
commission of belligerent acts. The status of neutrals made sense at a time
when States were legally entitled to resort to war, but it is doubtful how far
they remain valid. If force may only be used lawfully with UN authoriza-
tion, or in self-defence, and perhaps to avert humanitarian catastrophes,
many would argue that there is no room for neutrality. Third States must
follow the directions of the United Nations, or side with the State defend-
ing itself against aggression, or (surely) assist or at least not obstruct States
taking humanitarian action. Nonetheless, States have in practice asserted
their impartiality in respect of armed conflicts. The United Kingdom and
United States, for example, claimed to be impartial during the Iran–Iraq
war in the s (although they seemed to give considerable assistance to
Iraq and very little to Iran). Neutrality is perhaps not quite dead. It is
thought that at least the basic principles of neutrality survive: neutral
States must not allow their territory to be used by belligerents, and if they
comply with that principle they must not be targeted by belligerents.

.   

Before leaving this topic, which I have surveyed in only the broadest of
terms, there are two further points to be made.
The first is that we should be slow to abandon or blur the distinction
between crime and war. In practice, that distinction is one that may have to

56
<http://www.iaea.org/>
57
<http://www.un.org/events/npt/npttreaty.html>.
58
See UK Ministry of Defence, Manual on the Law of Armed Conflict (Oxford: Oxford
University Press, ), paragraphs .–..
 International Law
be drawn consciously and carefully, because it will not be evident from
the facts. The invasion of one State by another is clearly a war; but internal
conflicts usually start with protests and civil disobedience, rising to a scale
of civil disorder and often involving acts characterized as ‘terrorist’, and
then developing into a full-blown civil war. In the early stages third States
are free to assist the legitimate government in suppressing the disorder.
(Assisting the revolutionaries would amount to unlawful interference
in the internal affairs of the State, as the International Court held in the
Nicaragua case.) But there comes a point, marked in traditional inter-
national law by the recognition of the revolutionaries as belligerents, at
which third States were obliged to remain neutral in the conflict or to go to
war alongside one or other party. The legal position is much less clear these
days, partly as a result of the fact that the formation of policy in relation to
such conflicts frequently rests with international or regional organizations,
so that States consider that they have greater latitude to intervene because
they are acting on behalf of the international community rather than purely
unilaterally. But civil wars are armed conflicts, and the use of force in them
is regulated by international law. The principles of the laws of war apply to
them, albeit in modified form: that is the particular point of Additional
Protocol II to the Geneva Conventions, which builds upon Article  com-
mon to the four  Geneva Conventions and sets out the basic principles
of humanitarian law applicable in non-international armed conflicts.
From the internal viewpoint war and crime are even more starkly differ-
ent conditions, and the shift from one to the other transforms the most basic
social relations. In wartime, enemies are shot on sight, with impunity.
They lose legal rights. Discrimination against them is not merely lawful
but in many respects obligatory. Third States may be entitled to stand
aside from the conflict and maintain their neutrality or impartiality in
respect of it. In crime, on the other hand, even criminals are presumed
innocent, and are entitled to a fair trial and to basic human rights. They
retain their basic human rights, even in prison. And the rest of the world
is expected to assist in the fight against crime and not remain neutral as
between the criminal and the police. Blurring the distinction between
crime and war carries a serious risk of transposing the cold harshness of
wartime discrimination against The Enemy into everyday life; and that
seems to some of us a path to social disaster.

59
ICJ Reports , p. .
60
See also the decision of the ICTY in the Tadić case, Prosecutor v Tadić (Jurisdiction) ()
 ILR , <http://www.un.org/icty/tadic/trialc/decision-e/.htm> for a mas-
terly survey of this area of international law.
 The Use of Force 
The second point is that the international law on the use of force should
not be seen in isolation. It is one body of rules among many which regulate
relations between States. The avoidance of armed conflict between States
is a goal in which the provisions of international economic law, human
rights law, and many other areas of international co-operation, and the
pragmatic political activity of the United Nations and regional inter-
national organizations, are every bit as important as the Laws of War.
 

Postscript

There is a tendency at present for international lawyers to write of the

growth of NGOs and other non-State actors, and of the decline of the
nation-State, with the gleeful enthusiasm of a cartoon character sawing
off the tree branch on which he is sitting. Much of the enthusiasm derives,
I suspect, from a wish to appropriate non-State actors and make them a
part of international law, to keep the subject at the front of international
concerns. My own view is slightly different.
It is undeniable that the influence of the individual nation-State is
declining. Global interdependence is increasingly pervasive and obvious
as improved communications and the lessening of trade barriers encour-
ages businesses to obtain supplies, employees, and funds abroad. Transfers
of powers to international and supranational organizations such as
NAFTA, the WTO, and the EU entail a corresponding reduction in the
powers of national governments. Within States, pressures for decentral-
ization and the devolution of power also drain power from the central
government. And decisions taken by large corporations have direct effects
upon the daily lives of countless millions of people that are as important in
their way as the taxes and legislation that emanate from their respective
governments. It seems plain that the power of the State is in decline when
it is measured in relation to the increasing power of other actors. The
result, however, is not so much an expansion in the scope of international
law so as to claim all these other actors as its own, but rather that the
boundaries between international law and neighbouring legal subjects are
breaking down. International lawyers share ground with others. And this
trend will continue. But the most important point is that all of the ground
occupied by international law is shared with others who are not lawyers of
any description, but men and women in the vast range of other professions
and businesses whose cumulative efforts shape the world. Lawyers have a
contribution to make. They offer one way of going about resolving some
of the most crucial problems that face the world. But it is only one way
among many. There are many times when it is much better to call upon a
politician, or a priest, or a doctor, or a plumber.
 Index
acquisition of territory – Bosnia 
title based on prescription – Bretton Woods system –
Afghanistan  see also individual institutions
African Development Bank  Brezhnev Doctrine 
Agenda   Briand, Aristide 
aggressive war  Brierly, J. L. –
aircraft, nationality  Brooke, James 
airspace – Brundtland Report 
Albasini, João  Bunau-Varilla, Philippe 
Alexander VI, Pope – ‘buy local’ campaigns –
aliens , –, 
amendment of treaties – Cambodia 
Andean Community  Canada –
ANZUS Treaty ,  Caribbean Community (CARICOM)
application of international law –, 
– Caribbean Financial Action Task Force
domestic analogy – (CFATF) 
Aquinas, St Thomas  Caroline incident –
arbitration ,  Carrington, Lord 
Aristide, Jean-Baptiste  Central Treaty Organization (CENTO)
armed conflict see war and use of force 
Asian Development Bank ,  cession of territory –
Asia-Pacific Economic Co-operation  chartered companies 
Association of Southeast Asian Nations chemical weapons 
(ASEAN)  Chile –, , 
Augustine, St  China , 
Austria  Hong Kong , , 
ICJ and 
Badinter, Robert  Opium Wars 
Bangladesh – population 
Bank for International Settlements (BIS) Churchill, Winston 
 civil law systems 
Bankers Trust  cocoa 
Bantustans ,  Codex Alimentarius 
Barberyrac, Jean  coercion –
Baty, Thomas ,  coffee 
Beckett, Samuel  Cold War 
Belgium  colonialism , , , –
Belize  decolonization –
belligerent occupation – treaties and 
Berlin – Columbus, Christopher 
Bernadotte, Count  commandments 
biological weapons  common law systems 
Blair, Tony  Common Market for Eastern and
Bodin, Jean  Southern Africa (COMESA)
borders/boundaries/frontiers –, , 
–, – Commonwealth –
 Index
Communauté financière d’Afrique  debt , –
communications ,  decolonization –
companies , –,  democracy 
jurisdiction over  depression –
nationality of – digests of state practice 
personality in international law  diplomats/envoys , , , , –
transnational corporations  diplomatic protection of nationals
competing jurisdiction  –
competitiveness  discovery of territory , 
compliance with international law, discrimination 
reasons for – disease –
concession contracts  disputes
conflicting jurisdiction  duty to settle peacefully 
resolving conflicts – International Centre for the
Congo , , ,  Settlement of Investment
consent ,  Disputes (ICSID) , –
consistency  dual nationality 
continental shelf –, –, – Dunant, Henri 
contract law  Dworkin, Ronald 
co-operation
duty of – East African Community (EAC) 
extradition and legal co-operation East India Companies 
– East Timor 
courts –, – Eastern Caribbean Currency Union 
see also individual tribunals Economic Community of West African
covenants  States (ECOWAS) , 
crimes economy see global economy
against humanity  Ecuador 
war and – elites , 
Croatia ,  energy supply 
Cuba , ,  enforcing jurisdiction 
Guantanamo Bay , , , – environmental impact assessment 
culture, organizational  environmental issues –, , 
customary international law , , –, alternative approaches 
 transboundary harm –
acceptance as law – trusteeship and community
changes – resources approach –
collections of state practice – changing attitudes –
discernment of rules – limitations of law –
institutions – Rio Declaration , –
local and regional custom – Stockholm Declaration –
opinio juris –, –,  sustainable development 
proving – techniques for implementation of legal
peremptory norms (jus cogens) , agreements –
–,  equality
treaties and ,  equal rights principle –
persistent objections – sovereign equality of states –
time element – Eritrea 
treaties and – ethnic minorities , , –
what counts as state practice – European Bank for Reconstruction and
customary law systems  Development 
Czechoslovakia  European Court of Human Rights 
German protectorate () – European Court of Justice 
Russian invasion () , ,  European Nuclear Energy Tribunal 
 Index 
European Union –, , , , , , Gilbert, Humphrey –
–, , ,  global economy –, –
exchange of territory  Bretton Woods system –
Exclusive Economic Zones (EEZ) , commodity and energy agreements
, , – –
Export Credit Guarantee Department see also individual institutions
(ECGD) – global warming 
expropriation of property –, – gold standard –
extradition , – good faith principle –
extra-territorial jurisdiction , , government –
–, – Greece –, 
universal jurisdiction – Greenpeace 
Grenada 
failed states – Grotius, Hugo 
fairness  group rights 
Falkland Islands  Guantanamo Bay , , , –
false consciousness  Gulf Co-operation Council (GCC) 
federal states –
Financial Action Task Force (FATF)  Harris, David 
fisheries , –, –, , , – Heads of State 
trusteeship and community resources hijacking –
approach – Hong Kong , , 
flags of convenience  Huber, Max 
Food and Agriculture Organization Hudson Bay Company 
(FAO) , ,  human rights issues , –, –, ,
force see war and use of force –
Foreign Compensation Commission humanitarian intervention –
,  humanitarian law –
framework treaties  Hungary
France  Gabcikovo-Nagymaros dam , 
Air Services Agreement – uprising () , , 
Channel Tunnel  Hurd, Douglas 
continental shelf 
ICJ and ,  Iceland 
nuclear testing  immunities , –
Rainbow Warrior incident – impossibility of performance, treaties 
treaties and  independence of nation states –
Free Trade Area of the Americas (FTAA) India , 
 individualism –
frontiers –, –, – individuals 
fundamental change, treaties – diplomatic protection of nationals
fur seals – –
personality in international law 
game theory  informal procedures –
General Agreement on Tariffs and Trade informed consent –
(GATT) , –, , – Inter-American Commission and Court
General Agreement on Trade in Services of Human Rights 
(GATS) –, – Inter-American Development Bank 
general principles of law – interdependence 
genocide  International Atomic Energy Agency
Gentili, Alberico  (IAEA) , , , –
Germany , ,  International Centre for the Settlement
belligerent occupation – of Investment Disputes (ICSID)
Gibraltar , – , –
 Index
international claims – World Trade Organization (WTO) ,
International Cocoa Organization (ICO) , , –, –, 
 Dispute Settlement System ,
International Coffee Organization (ICO) –
 International Tribunal for the Law of the
International Court of Justice (ICJ) Sea (ITLOS) , , 
, , , , – international tribunals –
International Criminal Court (ICC)  see also individual tribunals
International Criminal Tribunal for International Whaling Commission
Rwanda ,  (IWC) 
International Criminal Tribunal for the Internet Corporation for Assigned
Former Yugoslavia ,  Names and Numbers (ICANN)
International Development Association 
(IDA)  interpretation of treaties –
International Electrotechnical interpretive declarations –
Commission (IEC)  invalid treaties –
International Energy Agency (IEA)  investment , –
International Finance Corporation (IFC) Iran , 
– Iran–US Claims Tribunal , 
International Grains Council (IGC)  Iraq , 
International Labour Organization , invasion () , , , , 
– invasion of Kuwait –, , 
international law –,  United Nations Compensation
aim of book – Commission –
origins – irrationality 
scope and nature of – Israel , , , 
see also individual topics Entebbe airport raid , 
International Law Association 
International Law Commission (ILC) Japan 
, , ,  jurisdiction –
Articles on State Responsibility  competing and conflicting 
 resolving conflicts –
International Maritime Organization enforcing 
(IMO) , , , ,  extradition , –
International Monetary Fund (IMF) , extra-territorial , , –,
, , – –
International Natural Rubber universal jurisdiction –
Organization (INRO)  immunities , –
international organizations –, – limitations on –
personality in international law – maritime –, 
as source of international law – over nationals –
see also individual organizations protective –
International Sanitary Bureau (ISB)  territorial –
International Telecommunications Union treaty-based 
(ITU) ,  universal –
International Tin Council (ITC) – jus cogens , –, 
international trade , , , – treaties and , 
‘buy local’ campaigns –
General Agreement on Tariffs and Kellogg, Frank 
Trade (GATT) –, , Kenya 
– Keynes, J. M. , , , 
General Agreement on Trade in Korean war 
Services (GATS) –, – Kosovo , 
protectionism , – Kuwait, Iraqi invasion of –, , 
 Index 
Law Merchant  statelessness 
League of Nations , ,  succession , 
lease of territory  territory see territory
legitimacy of nation states – unilateral acts of states as source of
Lesseps, Ferdinand de  international law –
liability – national law –
liberation theology  general principles –
Libya ,  international law in domestic courts
licensing – –
local and regional custom – recognition of states in –
locus standi  treaties in breach of –
London Club  nationality , –
jurisdiction and –
McLeod, Alexander  natural law , 
Madon, Georges  natural resources , 
Marshall Islands and Micronesia  trusteeship and community resources
Marx, Karl  approach –
material breach, treaties – Nauru 
Mauretania  necessity, termination of treaties and 
Meron, Theodor  Netherlands 
migrant workers  neutrality , 
military occupation  New Zealand –
Monaco  Newton, Isaac 
monarchy  Nicaragua , , , 
monetary system – non-governmental organizations (NGOs)
monitoring of data  
Monroe, James  non-intervention duty –
moral philosophy  non-legal sources of international law
Morgenthau, Henry – –
Morocco  non-tariff barriers 
Multilateral Agreement on Investment normativity –
(MAI)  North American Free Trade Agreement
Multilateral Investment Guarantee (NAFTA) , , , 
Agency (MIGA)  North Atlantic Treaty Organization
(NATO) , , 
nation states , , –, , –,  Norway –, 
borders/boundaries/frontiers notice of termination of treaties 
–, –, – Nottebohm, Friedrich 
government – nuclear energy 
independence – nuclear materials, transport of –
jurisdiction see jurisdiction nuclear weapons , 
law see national law Nuremburg Tribunal , 
legitimacy –
national security , ,  occupation, acquisition of territory and
nationality , – , –
personality in international law – occupied territories –
population – governing without sovereignty –
reasons for compliance with oil , 
international law – Oliver, Michael 
recognition – opinio juris –, –, 
in domestic law – proving –
sovereign equality of states – Opium Wars 
sovereignty , , , – Organization for Economic Co-operation
state responsibility – and Development (OECD) –
 Index
Organization for Security and prohibitions 
Co-operation in Europe (OSCE) proportionality, self-defence and 
 protectionism , –
Organization of Petroleum Exporting protective jurisdiction –
Countries (OPEC) ,  public health –
purchasing power parity 
pacta sunt servanda rule 
Palmerston, Lord  racial discrimination 
Pan American Health Organization Rainsborough, Thomas 
(PAHO)  realpolitik 
Pan American Union  recognition of nation states –
Panama  in domestic law –
Panama Canal  Red Cross 
papal grant of territory – refugees 
Paris Club ,  regional economic arrangements –
passive personality jurisdiction – see also individual organizations
passports  religion
Peel, Robert  religious courts –
Pereira, Fernando  treaties and 
peremptory norms see jus cogens reservations to treaties –
Permanent Court of Arbitration  rhetoric 
Permanent Court of International Justice Rhodesia , 
(PCIJ)  right of passage –, , , –,
personality in international law , – –
Peru  Rio Declaration , –
Pinochet, General  Rio Pact 
piracy ,  Rockall 
Pitcairn Islands  Roosevelt, Franklin D. 
plebiscites  Roosevelt, Theodore –
political offences  rubber 
political philosophy  Rumsfeld, Donald 
polluter pays principle  Russia
Ponsonby Rule – break-up of Soviet Union , 
population – Cold War 
Portugal , –,  ICJ and 
positivism  interventions in eastern Europe ,
poverty  , , 
precautionary principle , – limits on export of technology to 
prescription, title based on – Russo–Japanese War 
presential sea claim – territory 
principles of international legal system
–, – sale of territory 
co-operation duty – Sarawak 
duty to settle disputes peacefully  Saudi Arabia, treaties and 
equal rights and self-determination Schenk, Robert C. 
– seals –
good faith principle – seas and oceans
nature of Declaration on Principles of borders/boundaries/frontiers 
International Law – continental shelf –, –, –
non-intervention duty – deep sea bed , 
prohibition on threat or use of force duty of co-operation and –
–,  Exclusive Economic Zones (EEZ) ,
sovereign equality of states – , , –
state responsibility – maritime jurisdiction –, 
 Index 
presential sea claim – Taiwan 
right of passage –, , –, – Talleyrand-Périgord, Charles Maurice de
territorial seas –, –, , , 
–, –,  Tanzania , 
see also fisheries target setting –
self-defence – technical standards 
self-determination of peoples , , terra nullius 
, – territory –, 
occupied territories and – borders/boundaries/frontiers
Serbia  –, –, –
Shakespeare, William  governing without sovereignty –
Sherman, General  jurisdiction over –
ships modes of acquisition –
flags of convenience  occupied territories –
nationality  territorial seas –, –, , ,
slavery  –, –, 
Slovakia ,  title based on prescription –
Slovenia  terrorism , –, , , ,
social behaviour – –, 
socialist law  third parties, treaties and –
soft law – tin –
Somalia ,  torture 
sources of international law trade see international trade
custom see customary international law trade unions 
general principles of law – transboundary harm –
international organizations – transnational corporations 
non-legal sources – travaux préparatoires , 
treaties see treaties treaties , , –, , –, 
unilateral acts of states – amendment –
South Africa ,  collections 
South Asian Association for Regional customary international law and –
Co-operation  formation –
South East Asia Treaty Organization interpretation –
(SEATO)  interpretive declarations –
Southern African Development invalid –
Community (SADC)  release from treaty obligations –
Southern Common Market reservations to –
(MERCOSUR) ,  travaux préparatoires , 
sovereignty , , , – treaty-based jurisdiction 
governing without sovereignty Triffin, Robert 
– Tuvalu 
sovereign equality of states –
space law – Uganda , , 
Spain , – unequal treaties 
Sri Lanka  unilateral acts of states as source of
statelessness  international law –
states see nation states Union du Maghreb Arabe (UMA) 
Steyn, Lord  United Kingdom , 
Stiglitz, Joseph  Channel Tunnel 
Stockholm Declaration – digests of state practice 
Suarez, Francisco  discernment of customary
succession of states ,  international law rules –
Sudan  extra-territorial jurisdiction , –
sustainable development  fisheries –, 
 Index
United Kingdom (cont.) pax Americana 
ICJ and  rules of war –
international law in domestic courts territorial seas , –, 
– transboundary harm –
recognition of states by , – treaties and , , , , 
rules of war  universal jurisdiction –
territorial seas  Universal Postal Union (UPU) 
Torrey Canyon incident ,  uti possidetis 
trade unions 
treaties and , –, ,  Vanuatu 
Treaty Series  Vatican City , 
universal jurisdiction  Vitoria, Francisco de 
United Nations , , , ,  voisinage –, 
Centre on Transnational Corporations voluntary export restraints (VERs) 
(UNCTC) 
Compensation Commission – Walzer, Michael 
Conference on Environment and war and use of force , , –
Development (UNCED) aggressive 
– authorized by UN –
Conference on the Law of the Sea  Charter system –
Conference on Trade and crime and –
Development (UNCTAD)  humanitarian intervention –
Environment Programme (UNEP) law of armed conflict –
 occupation of territory after –
Human Rights Committee – prohibition –, 
Iraqi invasion of Kuwait and ,  self-defence –
personality in international law , Warsaw Pact 
– Western Sahara 
as source of international law – wheat 
space law and – White, Dexter 
Stockholm Declaration – Wilson, Woodrow 
Treaty Series  Winfield, Percy 
Trust territories  World Bank , , –, 
use of force authorized by – World Health Organization (WHO) ,
United States of America – , , 
acquisition of territory  World Intellectual Property Organization
Air Services Agreement – (WIPO) 
Civil War ,  World Trade Organization (WTO) , ,
digests of state practice  , –, –, 
extra-territorial jurisdiction , Dispute Settlement System ,
– –
fur seals –
ICJ and  Yugoslavia, break-up of , , ,
insurrection in Nicaragua and  –, , 
Monroe Doctrine –
national security  Zimbabwe , 
Panama Canal and  Zouche, Richard 