The rule of law has emerged both on the domestic and international levels as a promise of longstanding democracy, economic development and peace. On both levels, the rule of law is often associated with the longstanding character of institutions and the predictability of rules, meaning that ‘citizens are entitled to laws that are neither murky nor uncertain’. However, does this always mean in practice that the rule of law can only be concretized by laws and legal institutions that last forever? More specifically in the international context, can we guarantee the consolidation of the international rule of law through the coexistence of both permanent and temporary institutions and instruments? In this chapter, I analyse the meaning of the rule of law at the domestic and international levels and discuss its complex relationship with time. I argue that the past, present and future of the rule of law can be, in some cases, united by the use of temporary institutions such as international criminal tribunals or truth commissions, rules and measures. Temporariness can be essential to react swiftly to humanitarian crises, provide transitory justice, gradually concretize the rule of law in fragile democracies, and adapt legal orders to evolving economic and political circumstances.

In the opening chapter the volume editors reflect on the content of the book. They do so, by first touching upon the ideas the Editorial Board of the Netherlands Yearbook of International Law (NYIL) had in mind when opting for a volume on the issue of crisis, including such questions as: how international law reacts to crises and whether or not crises in daily realities also cause crises within separate international legal sub-disciplines. Next to that they summarize the eight chapters, followed by a reflection upon four topics and perspectives that come to the forefront when taking the contributions together and not reading them as reflections on separate trends in separate fields of international law. The four topics relate to: the role of crises in developing international law; do we do the things right or do we do the right things?; reconsidering and sharpening compliance; and the role of international lawyers.

This chapter compares and contrasts temporary international criminal tribunals to the permanent International Criminal Court (ICC) referencing international criminal law’s and UN Security Council’s (UNSC) relationship to ‘crisis’. All the situations where the UNSC has acted in international criminal justice are critical in the sense that they involve crucial decisions where members elect among distinct choices in inherently unstable situations. My argument is that crises enable a negative grounding of legal and political jurisdiction that relies on legitimation that is confirmed by judicial bodies. The analysis outlines the institutionalisation of an exceptional legal mechanism in the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY), its proliferation to the International Criminal Tribunal for Rwanda (ICTR) and its normalisation in the International Criminal Court (ICC). The purpose of this analysis is neither to parse what the law is and what it should be—nor what the law does versus what it promises—, but rather to show how and why individual criminal responsibility in the absence of State intervention demonstrates a globalising political power that is conjoined to a universalising legal glory. A crisis is a liminal situation, which by its ambiguity enables that process of power being linked to glory.

Theories of International Relations take various positions regarding the role of international law in international politics. This article identifies four different perspectives on that role by making two distinctions: first, between approaches that assume that states act on the basis of a cost-benefit analysis and approaches that assume that states act upon shared ideas; second, between theories that assume that sovereign states are the only relevant players in international politics and theories that allow for the possibility that domestic and transnational players may affect international politics as well. Subsequently, the article investigates the choices made by France, Italy, the Netherlands, the United Kingdom and the United States prior to the 2003 war against Iraq. The four perspectives on the role of international law provide different interpretations of the weight these states attached to international law when considering the use of violence against Iraq.

The signature of the Treaty of Versailles in 1919 marked the birth of the International Labour Organisation (ILO); the ILO Constitution formed Chapter XIII of the Treaty.

The urgent demand for improvement in food production for a growing world population necessitates, inter alia, a mere intensive exploration and exploitation of the living resources of the oceans. This higher level of exploitation can be realized by an increase in effort and by the development of new techniques for maritime fishing. However, at the same time it has become apparent that the living resources of the oceans are not inexhaustible. In many areas of the seas the dangers of overfishing have been amply demonstrated. This makes effective regulation of maritime fishing operations a matter of increasing urgency.

When, on 12 August 1949, the Diplomatic Conference of Geneva finished its work, an important part of the law of armed conflict had been “codified and progressively developed” in the light of past experience both of the Second World War and other recent armed conflicts. However, this was a far cry from saying that one could lean back in satisfaction over a job well done; indeed, equally –or perhaps even more– important problems of the law of armed conflict had remained outside the scope of the Conference and, hence, had not found a solution in the four Conventions it had adopted. The Conference had, in fact, been restricted to an examination of the problems concerning protection of war victims rather than those concerning warfare proper; and, although the IVth or Civilians Convention in particular incidentally deals with the power of belligerents to attack enemy territory, the problem of the protection of the civil population against the dangers of modern warfare had remained essentially open.

In the spring of 1971, the case of Ralph Joseph Waver, an American deserter, became a topic of discussion in Dutch legal circles, particularly those interested in public international law.

R.J. Waver was a gunner in the United States Navy serving in the U.S.S. “Marias” which formed part of the Atlantic fleet. On 26 June 1970 his ship called at Rotterdam and Waver deserted, inter alia because he strongly disagreed with American policy in South Viet-Nam. He went into hiding in Amsterdam where he established contact, through friends, with “Release”, a foundation which among other things made it its business to assist foreigners, if necessary with the help of lawyers and other experts. On their advice Waver departed for Sweden on 21 July 1970, as this country was said to offer him the best chance of being admitted. Late in July 1970 he applied to the Swedish authorities in Malmö for a residence permit. However, when the Swedish Government proceeded to hand over friends of his, who found themselves in the same predicament, to the United States Army in Germany, even before they had had time to bring an appeal against the refusal to grant them a residence permit, Waver returned to the Netherlands late in August 1970. “Release” thereupon approached some Members of Parliament who in their turn sounded out the Minister of Justice in regard to Waver's chances of obtaining a residence permit in the Netherlands. The Minister promised to take up the case with the Assistant Secretary-General of Justice. On 22 October 1970 the above Members of Parliament and the Assistant Secretary-General had their first discussion, part of it in the presence of Waver and his Counsel. Opinions differ as to the results of this discussion.

1. Part One: International Law in General

2. Part Two: Sources of International Law

3. Part Three: Subjects of International Law

4. Part Four: The Position of the Individual in International Law

5. Part Five: Organs of the State

6. Part Six: The Law of Treaties

7. Part Seven: Personal Jurisdiction of the State

8. Part Eight: State Territory and Territorial Jurisdiction

9. Part Nine: Seas, Waterways

10. Part Ten: The Air Space, Outer Space

11. Part Eleven: Responsibility

12. Part Twelve: Pacific Settlement of Disputes

13. Part Thirteen: Coercion and Use of Force Short of War

14. Part Fourteen: Armed Conflicts (War)

15. Part Fifteen: Neutrality, Non-Belligerency

16. Part Sixteen: Legal Aspects of International Relations in Various Matters

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.

The chapter takes as its starting point Pieter Kooijman's critique of Vattel's thinning out of the concept of authority in international law, one which attaches to the idea of state equality the possibility for each state to insist upon its own standards to the exclusion of any objective standards in the conduct of international relations. The chapter traces Vattel's contextual background in major Enlightenment shifts which set up a pernicious triad of thinkers such as Mandeville, Smith and de Sade. These thinkers make of post-Enlightenment economic and social relations a struggle of Master and Slave, most easily and clearly depicted in feminist studies, but also finding expression in imperialist relations and in particular, the unequal relations between the West and China, with the continuing inconclusive debate about unequal treaties. The chapter uses close study of a possible ‘anti-feminist’ novel, and feminist critique thereof, as well as a fairly extensive critique of the place of China in the recent history of international law, to argue that the present return of China to the position of a world power able to challenge the global system, could auger ill for post-Vattelian international law. Feminist critique is used to show that the post-Enlightenment ethical-cultural resources of international law are not equal to offering a country such as China more than a ‘masculine’ resort to its own self-strengthening. A search for alternatives ways to constructive dialogue are imperative, but, as Kooijmans shows, after Vattel the task of the international lawyer to contribute effectively is immeasurably disadvantaged.

There has been an undoubted increase since the Second World War in the legal accountability of States in municipal courts. The comparative lawyer, G. Eörsi, discussing the position of the State in relation to the private law of tort writes:

‘Governmental liability is a relatively new phenomenon … A considerable number of States have eliminated the immunity of the State and have introduced direct liability of the State, even though in many countries enforcement of claims against the State is not allowed’.