The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the relative effect to be accorded entitlements generated by these small islands vis-à-vis those generated by the continental and insular coasts that surround the South China Sea.

“Aerial Security Law.” Case No. 1 BvR 357/05. 115 BVerfGE 118. Available at <http://www.bundesverfassungsgericht.de>.

Bundesverfassungsgericht (Federal Constitutional Court of Germany), February 15, 2006.

On February 15,2006, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) held the Aerial Security Act to be unconstitutional. This act authorized the use of military force against any aircraft intended to be used for the killing of human beings, if the use of such force was the only means to avert an immediate danger. The Court based its ruling on two grounds: first, that the federal level of government had no legislative power to enact such a law, and second, that the act's authorization of military force infringed upon the guarantee of human dignity as embodied in Article 1(1) of the German Constitution, or Basic Law (Grundgesetz).

On January 5, 2003, a small airplane circled over the Frankfurt banking district. For a few moments people saw themselves confronted with a terror attack, recalling 9/11 and the pictures of the burning World Trade Center. The police evacuated several buildings and two Air Force fighter jets arrived before it was established that the pilot was not a terrorist but merely a mentally confused person. A year later, in January 2004, the federal government proposed a draft federal Aerial Security Act. The government argued that the attacks of 9/11, along with the Frankfurt incident, made clear that in order to protect against such attacks, it was necessary to clarify the roles of the federal and state (Länder) governments. “This draft is meant to achieve that aim … and to establish quick and efficient mechanisms for information gathering and decision.”

In domestic legal systems procedures exist for taking account of the interests of others when unilateral decisions affecting them are made. These procedures take such forms as the granting of injunctive relief and the requirement for impact statements. International law lacks comparable mechanisms. If governments consider the effects of their proposed decisions on other countries, they generally do so as a result of relatively unstructured intergovernmental consultations. The utility of such consultations has been recognized by decisionmakers of high rank, and a few studies of consultative practices in specialized fields have recently appeared. The present study examines the practice of prior consultation in a setting in which one might expect it to thrive, if it ever does: that of a political-military alliance among states with widely shared values and with a common (though not necessarily uniform) apprehension about a possible external threat to those values.

The largest industry in the United States, India, Austria, Pakistan, Hong Kong, South Korea, and Portugal, among others, is the textile and clothing industry. And perhaps in no other sector of postwar trade, save agriculture, have such persistent cries for protection been raised. Trade in textiles has demanded and received special treatment from national and international authorities since the late 1950’s. It is against this backdrop that some of the more important developments in the international regulation of commercial activities have occurred.

The First Hague Conference had as its main object a consideration of a “ possible reduction of the excessive armaments which weigh upon all nations,” or, at least, a discussion of the possibility of “ putting an end to the progressive development of the present armaments.” The conference early realized that even a limitation of the increase of military and naval expenditure was impracticable at that time, and devoted its chief energies to the secondary purpose for which it was called, viz., to discuss and devise “ the most effectual means of insuring to all peoples the benefits of a real and durable peace.”

Professor Louis Henkin and the National Petroleum Council are well known for their disparate views regarding the present extent of national jurisdiction of the coastal states over their Continental Shelves under the 1958 Geneva Convention on the Continental Shelf and also regarding the desirability of amending that Convention.

In the July 1973 issue of the Journal, there appeared an article with the above title written by Professor Richard Falk, in which he, in effect, advanced the thesis that the release of prisoners of war for repatriation during the course of hostilities in Vietnam to an ad hoc and self-styled “humanitarian organization” (which admittedly consisted solely of individuals who were vocal opponents of the United States participation in those hostilities) either constituted a valid and forward-looking interpretation of the provisions of the Geneva Convention of 1949 relative to the Treatment of Prisoners of War (hereinafter referred to as “the 1949 Convention”) or indicated the need for revision of that instrument. The subject appears to be one which calls for an analysis in considerably greater depth than the treatment provided in the article by Professor Falk.

Diplomacy has developed a large amount of formalistic ritual much of which is reflected in international law. The titles and ranking of diplomats constitute the most striking example. Curiously enough this tendency is not wholly reflected in the modern law and practice of treaty-making. It is of no legal consequence, for example, whether an agreement between or among states is called a treaty, a convention, a statute, an agreement, a protocol or a covenant or charter. Certain labels are used with a degree of consistency to signify the informal or temporary character of an agreement such as modus vivendi and “exchange of notes,” while others, such as “covenant” and “charter,” have been utilized to suggest the basic and over-all importance of the instrument. The labels do not, however, indicate whether the agreement registers a boundary settlement, the conclusion of peace, a political and military alliance, provisions for the extradition of fugitive criminals, arrangements for the distribution of radio frequencies, adjustment of double taxation, respect for copyrights, or facilities for travelling salesmen. The applicable substantive law similarly fails to distinguish among such diverse subjects and covers them all with the same rules concerning conclusion, interpretation, and termination. Such uniformity is convenient for the student, the statesman, and the judge, but it is not responsive to the needs of the international community in some important respects which will be discussed in this chapter.