From the outset, it is important to establish the meaning of “cabotage”, though, as so often happens, different meanings are possible. To recall what the German delegate to the General Conference on Communication and Transit, held in Barcelona in 1921, rightly observed in this connection: “In international law, by ‘cabotage’ is understood the transport of goods or passengers from one port in a country to another port in the same country. According to European international law ‘petit cabotage’ is spoken of when it is a question of ports situated on the same sea, and ‘grand cabotage’ when the ports are situated on different seas. Maritime transport from Bordeaux to Marseille is ‘grand cabotage’, from Bordeaux to Nantes or to Le Havre is ‘petit cabotage’. Consequently, in European international law, the word ‘cabotage’ is only applied to maritime navigation …”. … The cabotage question with which we are dealing here is quite different. It is not cabotage properly so called, and I am glad that in the Draft Convention we do not speak of ‘cabotage’, but of ‘local transport’…

This study deals with the question whether there is, to-day, an international right of innocent passage of warships through territorial waters in time of peace. With this in view it will first be examined which links there are with other fields of international law; then will follow a more comprehensive review of the fundamentals of the problem.

The term “navigation” in the purely technical sense means no more than the movement of vessels; in this sense the term is used in regulations bearing on the technical conditions for the movement of ships. “Navigation”, the freedom of which is established in international treaties, has a quite different meaning. Freedom of communications (including freedom of navigation on rivers) and freedom of commerce had already been conceived as correlative and complementary notions in natural law. Both the earliest and most recent treaties on inland navigation give conclusive evidence that dissociation of these two notions was never contemplated. It is true that freedom of navigation and freedom of commerce are, in principle, concerned with different matters. Navigation understood as the mere movement of vessels, may be exercised for scientific, philanthropic or recreational purposes. However, such movement of vessels for non-commercial purposes was never of such importance as to justify international regulation. Every international agreement in this field has envisaged granting freedom of navigation as an economic activity. Never, in international treaties, has navigation been treated exclusively as movement of vessels in the technical sense, viz. as an activity with an end in itself. On the contrary, for the purpose of international regulation, navigation has constantly been regarded as an economic activity, viz. as the operation of transport services for passengers and, in particular, goods. In other words, the international regulations have always regarded navigation as the exercise of the shipping trade.

A Yugoslav commentator on the Final Act of the Conference on Security and Co-operation in Europe (CSCE) – concluded on 1 August 1975 in Helsinki – recently wrote: “By indicating the ways of real and all-round active and peaceful coexistence in Europe, the Helsinki Document automatically rules out any ‘co-existence’ between the ‘spirit’ of Helsinki and the ‘spirit’ of Yalta”.

Necessity performs two distinct functions in the Law of Armed Conflict. In a wider sense, it stands as a restraining principle of LOAC, permitting the use of legally regulated violence only to the extent necessary to achieve the aims of war. In a narrower sense, it operates as a circumstance precluding wrongfulness, enabling a belligerent to perform some acts that, as a rule, would be prohibited. As far as the general principle of restraint is concerned, the main debate presently regards the definition of military objective and the requirement of definite military advantage, while the permissive function of necessity in armed conflict mainly displays its effects with regard to obligations related to the protection of (public, private, cultural) property. In International Criminal Law, the plea of military necessity (or of ‘the necessities of the conflict’) should only justify actions undertaken by a responsible actor after a wary evaluation of the situation in the battlefield. The plea of duress, where the accused argues that in committing the acts complained of, he/she acted under an immediate threat, should be accepted with more flexibility. As concerns State Responsibility, a critical issue is represented by the relationship between military necessity and the use of force. While jus in bello must always be applied equally by belligerents, states must respect the requirements of self-defence in order to be regarded as acting lawfully under jus ad bellum. However, the legality of the use of force is irrelevant in the area of individual criminal responsibility. Those who are engaged in an armed conflict are not concerned with its legality and therefore their behaviour must be exclusively judged on the basis of the standard prescribed by LOAC.

In this article it is discussed how the European Union's use of treaty-making powers and other external relations competences has contributed to the establishment of human rights as customary international law and makes it more likely that democracy and modern concepts such as good governance, precaution and sustainable development, will also gain this status. A specific focus of attention is on the EU's vision of the aforementioned rights and principles as a limit to State sovereignty. It is shown that the EU promotes an interventionist approach, which allows for proportionate responses to violations of peremptory norms by or in sovereign States. Since this view is expressly subscribed by a vast number of the EU's treaty partners, the EU's vision of State sovereignty is becoming a significant element in the development of the international legal order.

Commanders are the critical path enabling the formation and employment of any fighting organization. By extension, their units are most militarily effective where they are governed by adequate control mechanisms. The classic doctrine of command responsibility that imputes the criminality of subordinates onto their leaders is founded on the legal premise that commanders are responsible for establishing affirmative controls over their subordinates to regulate their conduct. The commander is thereby criminally culpable for failing to create a climate of compliance with the laws and customs of war. The obligation of commanders to control the conduct of their subordinates, or to take action to ameliorate violations when they do occur, applies to both formalized regular military organizations and the loosely structured non-state entities that are common in modern conflicts. Current legal tests for evaluating such ‘effective control’ inaccurately reflect modern operational reality by narrowly focusing on the particular circumstances of the criminal act and the precise relationship between the perpetrators and the superior at the moment of the offense. However, courts have developed and applied a series of tests for evaluating ‘effective control’ that in practice become formulaic and limiting. This trend is exacerbated when applied to warlords or non-state actors in non-hierarchical organizations.

Command responsibility has deep historical roots that transcend culture and geography, indicating a timeless consensus that commanders bear personal and professional responsibility for the acts of their subordinates regardless of the context in which they occur. International law subsequently developed to place a heightened responsibility on commanders who field a fighting organization and control the application of violence by their subordinates. Without the proper internal enforcement of the laws and customs of warfare, the commander becomes liable to external criminal enforcement, directed towards both the subordinates and the commander. Prosecutorial trends toward charging joint criminal enterprises and other new theories of individual responsibility fail to understand the essence of the criminality at issue for all fighting organizations – that it is the fielding of the fighting organization without the proper safeguards that in many cases is the causal factor for mass atrocities. Is the law presently configured such that a rebel warlord, a terrorist leader or an outsourced intelligence operator may evade superior responsibility simply because of the unorthodox structure of the fighting organization or the disaggregated orchestration of violence?

If the theory of effective control is not reconceived, the answer will be yes, and increasingly so. It is perhaps inevitable that the changing face of warfare requires a modernized conception of effective control. The concept of effective control should be reconceptualized by jurists to extend its present applications by including an imputed responsibility to any commander or non-state actor assuming that role who organizes a collective entity with the intent of conducting hostilities and thereafter fails to create a climate of compliance with the laws and customs of war. This approach will permit the extension of liability to commanders who organize cellular units that operate on the basis of primary loyalty to a local leader and with little/no tactical control by the hierarchy, such as the tactics seen in Iraq, Afghanistan, and a number of modern non-international armed conflicts.

Jurists should analyze superior responsibility cases with full cognizance of modern command and control theory in order to sustain its viability as a practical prosecutorial tool to regulate the crimes committed by loosely knit groups and non-state actors conducting atrocities in chaotic circumstances. A reconceived theory of effective control would retain the current indicia developed by jurists, which are most often applicable to state actors and formalized military hierarchies. To be clear, the current jurisprudence may well support liability in many cases, but the Composite Theory proposed herein would make localized findings of effective control one aspect of the larger judicial inquiry. A Composite Theory of Responsibility would revitalize and modernize the doctrine of superior responsibility and avoid impunity for those perpetrators clever or lucky enough to exploit the lacunae in current case law.

This study is concerned with the following question. To what extent, at the present stage of development of the international community, is individual consent required for an international person to be affected by changes in international law, and how far is his consent irrelevant or ineffective? As to new persons the first part of the question needs, of course, some adjustment so that it should be phrased: to what extent would the consent of the new person be required in order for him to be bound by international law existing at the time of his birth?

The Convention on the Law of the Sea is the result of almost ten years of negotiation at the Third United Nations Conference on the Law of the Sea. Three factors largely explain the length of the negotiations, namely: (1) the conflict of interests between the coastal states and the maritime states, including the military interests of the US and the USSR;(2) the divergent positions on the future regime for sharing resources found on the ocean floor held by the developing countries and the industrialized states, and (3) the problems connected with incorporating the interests of the land-locked countries into a convention on the law of the sea.

The origin of the litigation dealt with in this article, traceable to the lack of capacity to pay of German Governments after World War I and World War II, goes back to the period between these two conflicts. The German defeat in 1918 entailed economic consequences giving rise, inter alia, to the controversy adjudicated by the award of 16 May 1980. The Treaty of Versailles required the vanquished empire to assume entire responsibility by means of reparations payments for the losses and damage suffered by the victorious Allied Powers. At the outset, these liabilities were unlimited in amount. In 1921 their sum total was fixed by the London Payments Schedule at 132 milliards of gold marks (132,000 million), without any regard being paid to the problems involved in the raising and transfer of the funds. The combined impact of these measures and crippling post-war domestic inflation soon resulted in huge arrears, suggesting the impossibility of carrying out the agreement, and the conclusion that reparations could not be collected unless the German economy had sufficient strength to cope with that task.

This chapter proposes that international legal scholarship may, in its encounter with the phenomenon of migration, benefit from acquiring a sensitivity to the political economy of the distinction between crisis and the mundane. It does so by looking at two particular fields of international migration: refugee law and the law of irregular migration. The first enjoys a large degree of attention from international lawyers, while the other enjoys almost none. Moreover, within these two categories of migrants, international legal scholars tend to ‘see’ some subjects, such as refugee crises and human trafficking, and ‘not see’ others, such as the legal limbo of the ‘temporary’ refugee camp and the daily life of the irregular migrant. This chapter argues that the difference in attention international legal scholars give to one or the other category of persons is the product not of the jurisdiction or the reach of international law, but rather of ideological and epistemological biases. These biases cause international lawyers to ‘see’ crisis, and to ‘not see’ that which is not crisis—that which is quotidian, mundane, or ‘normal’, in the ‘everyday’ sense of the word. By focusing on the crisis/mundane distinction and the privileging of ‘crisis’, this chapter helps to identify the specific focus and boundaries of the epistemic bias of international migration law scholarship.

This essay investigates the institution of necessity in international environmental law. The point of departure is the analysis of Article 25 of the International Law Commission (ILC) Articles on State Responsibility regarding its applicability to the particular field of international environmental law. The special feature of the plea of necessity in international environmental law is that it has developed through the case-law. Without doubt, the plea of necessity can be invoked in international environmental law. However, (as in other areas of international law), it remains an exception. This was confirmed by the International Court of Justice which made clear that the invocation of necessity is very problematic. There are some unresolved issues concerning the plea of necessity in international environmental law, such as the question of the precautionary principle. The inclusion of the precautionary principle in the concept of necessity appears to give rise to a certain degree of difficulty, mainly deriving from the seemingly irreconcilable requirements of the ‘imminence of peril’ and scientific uncertainty represented by the precautionary principle. In the view of the present author, the complex and exceptional legal character of necessity in general and as applied in international environmental law in particular, will deter States from invoking it; therefore, the available practice will remain very scarce and to a certain degree inconclusive, as has already been evidenced by the available case law, analyzed in this essay.

This chapter examines the relevance of the principle of necessity to the international rules on the use of force. It claims that necessity has been the source of the international rules on the use of force which as independent titles manifest themselves in institutional as well as in customary forms. It also claims that the use of force constitutes a special regime of international law which is distinct from the law of state responsibility with which it however interacts.

Seldom has the law changed as dramatically in any country on a matter affecting international relations as has the law of the United States very recently on the subject of this yearbook: the immunity of foreign state property from attachment or execution. This change has been both procedural and substantive. The changing instrument has been a federal statute, the “Foreign Sovereign Immunities Act of 1976” (Public Law 94–583, 94th Congress, 90 Stat. 2891), which took effect on 19 January 1977.

1. When noting the arbitral award of 2 July 1956 of Messieurs Ripert and Panchaud in the case between the Société Européenne d'Etudes et d'Entreprises and the Yugoslav Government, it was not foreseen that this case would lead to so many decisions of municipal courts in Switzerland, France and the Netherlands, dealing with questions of State immunity and of execution of arbitral awards.

French riot police met the Greenpeace Organisation's ship “Sirius” with CS gas, when she tried to enter Cherbourg harbour in January 1983. She was acting in defiance of injunctions and a ban imposed on Greenpeace vessels by the harbour Prefect after an earlier similar protest against the import of spent nuclear fuel in 1980. She and her international crew were detained for several days; her captain was prosecuted and the UK Director of the environmental protest organisation, Mr. Peter Wilkinson, was held in prison overnight by virtue of an injunction – of which he had been unaware – against his personal presence anywhere in France.