This contribution focuses on the accountability of international governmental organisations as a conceptual problem. To that end it gives a quite extensive summary of the Final Report of the International Law Association on the subject and examines whether accountability can be conceptualise as an actual or potential part of the existing legal system of international organisations. Mainly because of the underlying traditional approach to international (institutional) law, it is asserted that the ILA does not really succeed in this objective. Inspired by a more realistic view of the plurality of modern legal systems – as developed by the institutional legal theory – an alternative legal concept of accountability of international organisations is presented. Based on the fundamental value that legal power entails legal accountability, the legal concept covers all situations of alleged non-compliance by international organisations with a legally valid – but not necessarily also legally binding – rule of international law. For the time being such a concept will be heavily contested in theory and practice. However, for that very reason it can help to stimulate the development of international institutional law as long as the international legal community actually believes in the fundamental value and the divergent views only concern the content of the rules and practices involved in the accountability of international organisations.

The main instrument of constitutional change in the European Union, during the last twenty years, was the revision treaty, that is, an international agreement between the member states of the European Union making amendments to the so-called ‘founding treaties’. The recent adoption of a European Constitution was seen by all the leading actors, and without any controversy, as involving again a revision of the current Treaties in accordance with the procedure of Article 48 EU Treaty, rather than the creation of a wholly new legal edifice. This Constitution thus fits, despite its many novelties, in the long chain of European revision treaties. All the revision treaties were important steps in the development of the European integration process. They were also, from a legal perspective, cases of amendment of multilateral treaties subject to the legal regime set out in Articles 39 to 41 of the Vienna Convention on the Law of Treaties.

European treaty revision was a success story in what could be called its golden age (1985–2000), when amendments were successfully made and implemented in accordance with the traditional method of intergovernmental conferences followed by national ratifications. However, increasing criticism of this traditional method led, not to the rejection of the international law framework altogether, but to claims for reform of the particular expression of that international law regime in the EU context. Those misgivings related to the exceedingly diplomatic (and therefore opaque) character of treaty negotiations, and to the excessive rigidity caused by the ‘double lock’ of overall consensus by all governments at the intergovernmental conference, followed by universal ratification in all the member states. The article examines the recent debates on these points, as well as the remedies which the new European Constitution adopted or failed to adopt.

The Italian experience concerning the possibility of subjecting the property of foreign states to measures of execution, is of very considerable interest from a comparative point of view. Italy is, in fact, one of the few countries to have adopted, many years ago, legislative measures of a fairly detailed and original nature to regulate this issue (contained in the Executive Order of 30 August 1925 n. 1621 which was subsequently enacted (with various amendments) as the Law of 15 July 1926 n. 1263). This Law is of interest, on the one hand, because of the insights which it gives into the approach which Italy has chosen to adopt in the interpretation of the content of the rules of international law governing the immunity of foreign states from measures of execution (and jurisdiction); and, on the other hand, because it is designed in such a way as to free the Italian judiciary from the need to venture into the quicksands of the principles of international law governing this subject; its ultimate aim, in fact, is to transfer from the judiciary to the Government the responsibility of deciding whether measures of execution against the property of foreign states should be allowed or not.

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximise human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals must accord a healthy measure of deference to state derogations. Deference to state derogations is not warranted, however, if circumstances suggest that national authorities are not prepared to serve as impartial, rights-optimising trustees for their people.

The disciplines of international law and geopolitics have evolved around the same object – the exercise of State power in space. But the interaction between geopolitical and legal categories has not been properly examined yet. Similar to international law, geopolitics focuses on certain, albeit not formally binding, laws that govern or explain the conduct of States in relation to space. There is room for the geopolitical laws reasoning to lead to outcomes that differ from those required under international legal obligations of States. In other cases, geopolitical laws and reasoning could actually explain why certain international legal rules and institutions are what they are. This contribution is the first attempt to study geopolitics and international law in parallel to each other. It is demonstrated that the evolution of geopolitical thinking, whether as part of a particular expansionist or containment agenda or as scientific approach, has constantly reflected on the categories of international law, and also has been used in practice by States to justify their particular conduct in defiance of international legal requirements. At the same time, international law has traditionally left to States the room for pursuing their geopolitical agenda without breaking the requirements of international law. It is here that the significance of geopolitical factors for international law becomes clear, as the allegedly lawful expansionist action by States can lead, and has repeatedly led, to reactions that involve breaches, and potentially damage the integrity, of international law. Despite geopolitical agenda being allegedly lawful, it still has to observe certain geopolitical laws in order to avoid broader negative repercussions both for that agenda and for international law.

Like all other international customary law, international customary law on state immunity is adopted into Austrian domestic law in virtue of Article 9 of the Austrian Federal Constitution, which reads: “The generally recognized rules of International Law are held to be component parts of the Federal Law”.

Of all the issues of public international law, the position of foreign states in national courts is the one to which Belgian practice has made the most specific contribution.

Article 21 of the Rome Statute of the International Criminal Court determines, according to its very wording, the ‘applicable law’. It reads as follows:

‘ 1 . The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence ;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status..’

The purpose of this report is to consider the provision on removal of disused installations, contained in Article 60.3 of the 1982 UN Convention on the Law of the Sea, in particular its history and scope, its further elaboration by “standards” to be established by the International Maritime Organization (IMO) and other relevant questions. The questions to be considered with regard to the removal obligation include more specifically:

a) the position under the corresponding provision of the 1958 Continental Shelf Convention;

b) the position under customary international law;

c) the effect of Article 60.3 of the new Convention pending its entry into force, and thereafter;

d) the question of jus constituendum, i.e. the standards to be evolved in IMO or other appropriate international organizations;

e) the relation between rights and obligations derived from a) to d) above and those based on other international instruments such as in particular the Oslo and London Dumping Conventions of 1972.

This article examines the question of the right of States forcibly to affirm and protect substantive rights which have been unlawfully violated or denied by another State and considers a number of the legal and policy requirements which are relevant in the assessment of the place of this right under contemporary international law.

It has been recognized more clearly than ever in modern times that economic relations are inextricably bound up, on the international plane, with political relations among states. To quote from three distinguished American political scientists, C.F. Bergsten, R.O. Keohane and J.S. Nye

“On the motivational level … political and economic factors are frequently so closely intertwined that they cannot be disentangled. In addition, regardless of motivations, politics and economics are almost inevitably linked at the systemic level. An international economic system is affected by the international political system existing at the time, and vice versa.”

When interpreted, sometimes treaties have to go through a trial by fire and are found either to be ‘living instruments’ evolving alongside the relevant changes both in law and in facts or to have a ‘fixed’ meaning. The aim of the present article is to examine how intertemporal considerations find their way into the interpretative process and what the effects are on the treaties being interpreted. Do these changes in law and fact actually change the treaty itself, or do they merely trigger a latent quality already existing in the treaty itself? Does time change the treaty, or does it merely ‘unfold’ it? This question will be examined through the lens of the main philosophical theories on identity, persistence, time and change (endurantism, perdurantism and exdurantism), and by focusing on the ‘direct’ (principle of contemporaneity and evolutive interpretation) and ‘indirect’ (Article 31(3)(c) and the intertemporal application of the rules of interpretation) points of entry of intertemporal considerations in the interpretative process. Through this examination the elements that weigh upon the judicial interpretative process and tip the scales either in favour of an evolutive interpretation or in favour of the principle of contemporaneity, will be identified, as well as the limits of any such interpretation. In this manner, an answer will be arrived at as to whether, from an interpretative perspective, treaties endure, perdure or exdure.

International customary law on state immunity like all other international customary law is adopted into the domestic law of the Federal Republic of Germany in virtue of Article 25 of the Basic Law of the Federal Republic of Germany: “The general rules of international law shall form part of federal law. They shall take precedence over the laws and create rights and duties directly for the inhabitants of the federal territory”.

Since the failure of the 1958 and 1960 Conferences on the Law of the Sea to provide for universally agreed outer limits of the territorial sea, international law has been faced with numerous claims on a seaward extension of coastal State jurisdiction. Such national claims have taken two different forms, either by making the claimed area part of the State territory, or by merely asserting certain exclusive rights and regulatory powers in given marine zones. The scope and content of such zonal claims vary considerably, according to the particular objective pursued. This development reached its peak between 1976 and 1979. In this four year period, 60 claims were made regarding territorial seas and 59 claims were made to establish exclusive economic zones. That phenomenon is, at least partly, the consequence of the negotiations of the Third UN Conference on the Law of the Sea. In May 1975, following the second substantive session, the Conference produced its first negotiating text. It reflected a general consensus on, inter alia, a 12 mile extension of the territorial sea and the acceptance, in principle, of a 200 mile exclusive economic zone. Meanwhile the Convention on the Law of the Sea (CLOS) has been signed by 157 States and ratified by 31. Such a large number of States giving their assent to the Convention leads to the question of how far national claims to archipelagic waters, extended territorial seas, exclusive economic zones or extended continental shelf areas, are compatible with the Convention on the Law of the Sea. The message provided by such an analysis of State practice will be twofold. It firstly indicates whether the Convention on the Law of the Sea was successful in putting an end to the permanent extension of coastal State jurisdiction experienced in the past and whether it thus contributed to the reduction of potential conflicts concerning the distribution of the resources of the sea. In this respect the Third UN Conference on the Law of the Sea and its result, the Convention on the Law of the Sea, have to be subject to an appraisal against the background of Article 13 paragraph 1(a) UN Charter, according to which it is one of the functions of the General Assembly to promote and encourage the progressive development of international law as a means of maintaining international peace and security.

There is a considerable amount of literature on the place within the European Community legal order of international agreements concluded by the European Community as well as those concluded by the Member States, and this includes the case-law of the European Court of Justice (hereafter ‘the Court’) on the matter. Similarly, much has been written on the relationship between European Community law and the legal systems of the Member States and on the relationship between international law and national legal systems. In contrast, the place of non-treaty international law within the Community legal order has not been the subject of such extensive analysis, whether in the literature or in the case-law of the Court. It is the treatment by the Court of this kind of international law that is the subject of this paper.

This text is an inquiry into how the international community is understood in and through international law. My prism for this inquiry shall be the principle of proportionality in international humanitarian law, relating expected civilian losses to anticipated military advantage. To properly understand proportionality, I have to revert to the structure of analogical thinking in the thomistic tradition. Proportionality presupposes a third element to which civilian losses and military advantage can be related. In a first reading, I develop how this tradition of thought might explain the difficulties contemporary IHL doctrine has in understanding proportionality. If military commanders misconceive the third element as the sovereignty of their own state, they will invariably apply the proportionality principle in a paternalistic manner. This would obviate the most rudimentary idea of equality among states and do away with the common of an international community. In a second reading, I shall explore whether this third element could instead be thought of as a demos, while retaining the existing framework of analogical thinking. My argument is that this secularizing replacement is possible. Practically, its consequence would be a radical change in the task of the responsible military commander determining proportionality. That commander would now need to rethink civilians endangered by an attack as a demos whose potentiality must be preserved.

This contribution builds on some earlier studies on the shortcomings of and ways around the traditional model of State responsibility under international law. It aims to obtain a better understanding of the nature of State responsibility, the reasons for its failure in some contexts and the basic characteristics of some alternative, complementary mechanisms that have been developed in international law. To that end, it understands the rules of State responsibility in a functional way: as a way of organizing our dealings with undesired events or situations. This understanding of State responsibility makes it possible to compare the rules of State responsibility with some other ways of dealing with undesired events. Following Francois Ewald's distinction between ‘responsibility’, ‘insurance’ and ‘precaution’, three co-existing models of dealing with undesired events will be discussed: (1) State responsibility for internationally wrongful acts (dealing with the reparation of a broken normalcy); (2) risk-management (dealing the mastering of time and disciplining of the future) and (3) precaution (dealing with conditions of late modernity or ‘world risk society’).

The protection of cultural objects through international law has developed significantly in the last couple of decades. Protection in the event of armed conflict was the subject matter of a convention in 1954; in 1970, measures were taken aimed at controlling the movement of recognized art treasures and other cultural property and, in recent years, efforts have been made to ensure the protection of immovable works of art in peace time. The latter works are threatened not only by age and cataclysms, through ignorance and vandalism of men but also, and increasingly, through the occupation of space required for the progress of civilization, such as the extension of residential zones, agriculture, industry, and the infrastructure for transport, and, generally by the devastating results of modern life manifested through industry and transportation. Even when protected these objects may suffer from old age and the fact that they have been turned into dead musea.

Few undertakings of the International Law Commission have proved to be as controversial as its study of “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law”. Despite an encouraging initial report by a working group of the Commission on the suitability of the topic for codification and progressive development, the undertaking, once launched, immediately met with strong scepticism, at times outright rejection. It is true that over the last two years support for the Commission's work on the topic has grown appreciably both within and outside the Commission. However, detractors of the study remain strongly in evidence.

A quarter-century ago in the Nicaragua judgment, the International Court of Justice insisted that to disallow a state's adherence to any particular governmental doctrine ‘would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State’ (para 263). The Court invoked the 1970 Friendly Relations Declaration and related documents that ‘envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies’ (para 264). Although the continued relevance of this model of sovereign equality has since been called into question – above all, in the name of human rights, international criminal justice, and the ‘responsibility to protect’ – no systematic replacement has emerged. Notwithstanding some modification and erosion, the sovereign equality principle continues to have significant (and worthy) implications for legal relations between liberal and non-liberal states.