bluuebunny/crossref_metadata_2025 huggingface dataset:
Some remarks about special features of human rights treaties
Authors: Vierdag E.W.
Published: July 2009

Undoubtedly, human rights treaties have some special characteristics; but it seems important first of all to identify the phenomenon of the ‘human rights treaty’ for the purposes of the present article. An overwhelming number of treaties exist on the protection of rights of individuals, ranging from bilateral treaties to conventions with well over a hundred parties. Not all of these treaties can be said to be on the protection of ‘human rights’, as in international legal parlance not all the rights of private persons which are protected by treaty are called ‘human’ rights. But it is impossible to draw sharp lines as grey zones as well as a certain degree of overlapping appear to exist. Thus, for instance, property rights protected by treaty will generally not be considered as ‘human rights’, but Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, to name just one example, concerns ‘the peaceful enjoyment of [one's] possessions.’ By the same token, rights that are also currently identified as ‘human rights’ appear to be of a widely differing character. The same is true for the treaties in which they are enshrined as well as for the mechanisms of supervision of their application that are provided for in these treaties.
International environmental law as a special field
Authors: Fitzmaurice M.A.
Published: July 2009

The purpose of this Article is to review international environmental law as, in a certain sense, a special field of international law. In doing this, it is not the intention to argue, or even imply, that international environmental law constitutes in some way a special branch or regime separate from the mainstream of traditional or classical international law. Rather, what we will be doing is to look, firstly, at certain ways in which special features of the environment as a subject matter of international law have resulted in particular solutions, applications or rules within the general principles of international law which, if not necessarily unique to, are at least particularly characteristic of, environmental law. Secondly, we shall see, however, that the attempt to provide a necessary legal framework to meet the problems of the environment, both alone and in relation to other perceived problems of the modern world, are stretching and possibly straining the limits of classical international law. The result is that international environmental law is at present also characterised by the rise of novel theories, many of which are not universally accepted, but which may, neverthless be very influential in the whole field, political, legal and scientific, of environmental protection.
Constitutionalism, the Community Court and international law
Authors: Hancher L.
Published: July 2009

The purpose of this article is not to attempt to establish whether or not the EC legal system is a ‘self-contained regime’ in the sense implied by Simma. It is submitted that given the origin of that system as part of the international legal order, as a system which the Court itself described as ‘a new legal order of international law’ EC law cannot be conceived as totally distinct or self-contained. Nor, in this author's contention, is there much to be gained from such an approach as a contribution to the understanding of the current state of the relationship between international and European law. This article takes a rather different approach to the analysis of European law as a separate or distinct branch of international law without attempting to assess just how absolute or complete that process of separation might be.
Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter
Authors: Gill T.D.
Published: July 2009

Since the outbreak of the Second Gulf Crisis the question of the role of the United Nations Security Council in the maintenance of peace and security within the context of the institutionalized collective security system provided for in the UN Charter, and the closely related question of the principal legal and political limitations on the exercise of its authority under Chapter VII of the Charter, have been at the forefront of attention.
On the uniting of States in respect of treaties
Authors: Ribbelink O.M.
Published: July 2009

Apart from the proverbial exception to the rule, all changes in the composition of the international community of States resulting from State succession, whether through decolonization or through the uniting or separation of States, are reflected in the membership of the United Nations. In the first 50 years of its existence the number of member States of the organization has almost quadrupled, and this growth is to a large extent attributable to a multitude of cases of State succession, the majority of which resulted from decolonization. When these ‘new’ States began to outnumber the ‘old’ ones, State succession, and in particular the international legal implications of State succession, became a ‘hot issue’ on the UN agenda, especially on the International Law Commission's (ILC) agenda.
The contribution of the International Law Commission to international water law: does it reverse the flight from substance?
Authors: Nollkaemper A.
Published: July 2009

In 1994, the International Law Commission (ILC) adopted the Draft Articles on the Law of the Non-Navigational Uses of International Watercourses. Having been favourably reviewed by the General Assembly of the United Nations, these Articles now form the negotiating text for a global treaty on international water law. The fate of this treaty remains uncertain. But irrespective of the results of the negotiations, the text formulated by the ILC may become an authoritative source of citations for States, scholars and other actors involved in disputes over water scarcity, and is therefore likely to have a determinative influence on the development of international water law. For this reason a critical examination of the ILC Articles is imperative.
Effectiveness v. the rule of law following the East Timor Case
Authors: Antonopoulos C.
Published: July 2009

On 30 June 1995 the International Court of Justice delivered its Judgment in the East Timor case. The dispute before the Court involved proceedings instituted by Portugal against Australia in 1991 because of the conclusion of the so-called Timor Gap Treaty of 1989 between Australia and Indonesia. The Treaty concerns the joint exploitation of the continental shelf lying between the territory of East Timor and the northern coast of Australia (the so-called Timor Gap). Portugal asserted its position as the administering power of East Timor and claimed that Australia should have concluded and implemented the joint exploitation treaty with it rather than Indonesia.
Estoppel and the preclusive effects of inconsistent statements and conduct: the practice of the Iran-United States Claims Tribunal
Authors: Weeramantry J.R.G.
Published: July 2009

When statements made before the Iran-United States Claims Tribunal (the ‘Tribunal’) have exhibited some degree of divergence from representations or conduct made at a different point in time, estoppel and associated concepts have often proved to be of considerable assistance in determining between the competing versions presented. This article will assess the application of the doctrine of estoppel and related concepts by the Tribunal and compare its jurisprudence with the position of such principles as accepted in international law.
Inspection in international law: Monitoring compliance and the problem of implementation in international law
Authors: Oeter Stefan
Published: July 2009

The international legal community seems to be in a state of transition. Contemporary perspectives of international law are still generally dominated by traditional concepts of international community as a grouping of sovereign nation States the rules of which are in in principle based on consent. But at the same time there exists a prevailing impression that traditional international law is too cumbersome and archaic in order to cope with the pressing needs of mankind. A ‘World Public Order’ is demanded by not small an amount of political and legal writers.
New challenges to IMF jurisdiction
Authors: Denters Erik
Published: July 2009

Interdependency and the need to cooperate between states will continue to give increasing responsibilities to intergovernmental organizations that seek to benefit their membership by the management of international or regional problems of whatever kind. Simultaneous to this development, jurisdiction of international organization as a branch of public international law will require further research. As the scope of activities of international organizations will expand, the development of the law of international organizations must focus on the delicate balance of jurisdictions of organizations and their member states. The latter may be willing to subject themselves to the jurisdiction of an international organization but it is also their legitimate interest that the organization observes its purposes and powers. Constitutional interpretation and dispute settlement should safeguard such interests.
The WTO and the progressive development of International Trade Law
Authors: Weiss Friedl
Published: July 2009

If the trading system of the 21st century is to succeed in ‘raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production and trade in goods and services … in accordance with the objective of sustainable development’, it must be equipped to achieve these goals.
Internal waters
Authors: Degan V.D.
Published: July 2009

It has long been generally admitted that coastal States enjoy sovereignty over their internal waters to the same extent as over their land territory. The implication of this has been understood to be that the rules of general international law, concerning the legal order of the seas, do not affect the internal waters of coastal States. For this reason these waters alone have not been the subject of the codification of the law of the sea by general conventions.
The Gulf War from the point of view of international law: An ordinary war of aggression inspired by territorial ambition?
Authors: Dekker I.F. , Post H.H.G.
Published: July 2009

Iraq and Iran would certainly not come at the top of everyone's list of States which are particularly concerned with the implementation of international law. However, as is the case in virtually all international conflicts, to justify their actions in the Gulf War, these States have also adopted positions based on arguments of international law. In a complicated conflict such as this, it is by no means easy to assess the validity of such justifications, as this contribution attempts to do, if only because the facts are extremely difficult to determine objectively. For purposes of international law, this problem regarding the facts can be partially avoided by analysing the conflict mainly on the basis of the viewpoints raised during the discussions of the conflict in the Security Council and the General Assembly of the United Nations. Moreover, only the first stage of the conflict up to 1980 is examined here.
The 1985 UNCITRAL Model Law on International Commercial Arbitration: an exercise in international legislation
Authors: Broches Aron
Published: July 2009

On 21 June 1985 the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Law on International Commercial Arbitration, six years after the Commission had decided to request the Secretariat to commence work on a model law on arbitral procedure.
Open Registry, the Genuine Link and the 1986 Convention on Registration Conditions for Ships
Authors: Bettink H.W. Wefers
Published: July 2009

Ever since its origin in the early 1920s, open registry shipping has been the subject of much debate in international, governmental and industrial shipping circles. The first opposition came from labour unions in traditional maritime countries, whose members' jobs were threatened by the transfer of ships to Liberia, Panama and other open registry countries. Later, shipowners from a number of European countries persuaded their governments to take action against the unfair competition which in their opinion was presented by open registries. In the 1970s, developing countries called for them to be phased out, as they felt that the existence of open registries hampered the development of their merchant fleets.
The Emerging Customary law of marine zones: State practice and the Convention on the law of the sea
Authors: Wolfrum R.
Published: July 2009

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.
Taking of Property in the Practice of the Iran-United States Claims Tribunal
Authors: Pellonpää M. , Fitzmaurice M.
Published: July 2009

The Iran-United States Claims Tribunal (hereinafter, the ‘Tribunal’) established by virtue of the Claims Settlement Declaration of 19 January 1981 has:

‘the purpose of deciding claims of nationals of the United States against Iran and claims of nationals of Iran against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject matter of that national's claim, if such claims and counterclaims are outstanding on the date of this Agreement, whether or not filed with any court, and arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriation or other measures affecting property rights …’
Some Features of Dutch Treaty Practice
Authors: Sondaal H.H.M.
Published: July 2009

Since 1813 the Kingdom of the Netherlands has concluded over 6,000 treaties. It has a long standing practice, which took shape particularly after World War II, when international relations became part of the daily life of nations and the number of treaties increased dramatically, and again after the revision of the Dutch Constitution in 1953, when the relationship between the powers of the Government and Parliament regarding treaties was finally established. Current practice is determined by two characteristics. The first is the constitutional provision that, except in certain specified cases, consent for the Kingdom of the Netherlands to be bound by a treaty cannot be given unless the treaty has been approved by Parliament. In practice the rule is interpreted in such a way as to strike a balance between the Government's need to conduct an efficient and effective foreign policy and Parliament's need to exercise proper supervision over that policy. The second characteristic is that, in applying these constitutional provisions (for text see Appendix 1), the term ‘treaty’ is interpreted substantively. Whether an instrument substantively constitutes a treaty is also a matter of interpretation, since international instruments vary so much in form and content that many of them are scarcely covered by the brief constitutional provisions on treaties.
State Responsibility and Tort Proceedings against a Foreign State in Municipal Courts
Authors: Fox H.
Published: July 2009

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’.
Aruba: a Separate ‘Country’ within the Kingdom of the Netherlands on its Way to Independence
Authors: de Jong H.G.
Published: July 2009

A Round Table Conference involving the two member-Countries constituting the Kingdom of the Netherlands, i.e., the Netherlands and the Netherlands Antilles, and the six islands of the Netherlands Antilles, took place in March 1983 in The Hague. The subject was the constitutional position of one of the islands, Aruba. Acting on the assumption that each of the islands had the right of self-determination, the Conference accepted Aruba's decision to make use of that right and opt for independence, and thus secession from the Kingdom of the Netherlands, to take effect in 1996. In the interim Aruba would be granted separate status, i.e., as a Country within the Kingdom under the Charter of the Kingdom, for a transitional period of ten years.
Customary International Law in the Nicaragua Case
Authors: Rijpkema P.P.
Published: July 2009

On 27 June 1986 the International Court of Justice passed judgment in the case concerning military and paramilitary activities in and against Nicaragua. Because of a reservation that the United States had made when it accepted the jurisdiction of the Court, the Court could not pronounce a decision regarding the dispute insofar as it concerned multilateral convertions. As a resuld of this, the Court was compelled to base its judgment largely on rules of customary international law and general principles of law. The rules of customary law which were relevant for the judgment corresponded to a significant extent, as regards their content, to the rules of treaty law which the Court was unable to apply, such as the prohibition on the use of force of Article 2, paragraph 4 of the Charter of the United Nations. This led the Court to indicate in precise terms how rules of treaty law and rules of customary law which have a corressponding content can co-exist and how the existence of rules of customary international law can be established in general. In addition, the Court examined in some detail the existence and content of certain specific rules of customary international law.
Belligerent Reprisals Revisited
Authors: Kalshoven F.
Published: July 2009

The international law of armed conflict aims to regulate the conduct of hostilities by belligerent parties and their armed forces and to protect certain especially vulnerable categories of people, such as prisoners of war and the inhabitants of occupied territories. How effective can it be in this pretension, and what mechanisms are available to promote compliance?
The Exercise of Jurisdiction in the Antarctic Region and the Changing Structure of International Law: The International Community and Common Interests
Authors: Lefeber R.
Published: July 2009

Since the entry into force of the Antarctic Treaty in 1961, the Antarctic Treaty Consultative Parties have adopted numerous regulations in order to protect and preserve the fragile environment of Antarctica. The enactment of legislation on environmental and other issues is the prerogative of a limited group of Contracting Parties, the Consultative Parties. They negotiate and adopt recommendations as well as new conventions related to the Antarctic Treaty. The entire body of rules is referred to as the Antarctic Treaty System.
The Law of the United Nations and the Use of Force, under the Relevant Security Council Resolutions of 1990 and 1991, to Resolve the Persian Gulf Crisis
Authors: Lavalle R.
Published: July 2009

In response to Iraq's forcible occupation of Kuwait in the summer of 1990, the United Nations Security Council adopted twelve resolutions that year.
Refusal of Extradition and the United Nations Model Treaty on Extradition
Authors: Swart Bert
Published: July 2009

On 29 November 1985 the General Assembly of the United Nations adopted a Model Agreement on the Transfer of Foreign Prisoners. Five years later, on 14 December 1990, it adopted four more Model Treaties on international cooperation in criminal matters. The first concerned extradition, the second mutual assistance in criminal matters together with a Protocol concerning the proceeds of crime, the third transfer of proceedings in criminal matters, and the fourth transfer of supervision of offenders conditionally sentenced or conditionally released. A Model Treaty on the transfer of enforcement of penal sanctions is being prepared.
Dispute Settlement Arrangements in Investment Treaties
Authors: Peters Paul
Published: July 2009

The idea for this study came from the realization that I am in possession of a largely untapped reservoir of valuable treaty materials: the network of bilateral investment treaties (BITs hereafter) which I have collected and studied for a number of years. In these treaties more than one hundred governments have taken a position on a number of issues relating to the promotion and protection of international investments. The three key issues are expropriation, transfer rights with regard to capital and revenues, and dispute settlement.
The Nature and Scope of State Immunity from Jurisdiction and Execution
Authors: Bouchez Leo J.
Published: July 2009

The concept of state immunity connotes that a state does not fall under the jurisdiction of foreign courts (immunity from jurisdiction) and that its property located in foreign territory is not subject to attachment and execution (immunity from execution). Thus, state immunity has a twofold nature: immunity ratione personae, in so far as a foreign state is involved, and immunity ratione materiae where foreign state property is at stake.
Execution of State Property: United Kingdom Practice
Authors: Higgins Rosalyn
Published: July 2009

This article deals with attitudes in the United Kingdom to the attachment or execution of State property pursuant to a judicial ruling by a Court. It is divided into two parts: the first covers the attitude and practice of the United Kingdom with regard to the attachment or execution of foreign state property within the former's jurisdiction. The second comments on the attitude and practice of the United Kingdom Government to attachment or execution of its property located within the jurisdiction of foreign states.
Immunity of State Property from Execution in the Yugoslav Legal System
Authors: Varady T.
Published: July 2009

There are several situations in which the problem of possible immunity of state property from execution pursuant to decisions of foreign authorities may emerge. This paper will consider these situations when the forum is Yugoslavia, since this might be expected to reveal the position taken in Yugoslav law.
Immunity of Foreign State Property from Attachment or Execution in the USA
Authors: Metzger Stanley D.
Published: July 2009

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.
Legal and Non-Legal Norms – a meaningful distinction in international relations?
Authors: Bothe Michael
Published: July 2009

In his final speech at the Helsinki Conference (CSCE) in 1975, Prime Minister Wilson called the Final Act of the Conference a “moral commitment”, not an international treaty. Thus, the Act is not binding as a matter of international law, though it is quite clear from the historical context, and from the wording of the Final Act itself, that the participating states have some sort of obligation (“commitment”) to base their future conduct on the provisions of the Final Act. The Act formulates norms, rules intended to determine state behaviour, but these rules are not of a legal character. This is, apparently, the assumption underlying the Wilson statement, to which many similar statements could be added. As will be shown, a considerable body of state practice based on the same concept has developed, and points to the existence of non-legal (pre-legal, para-legal, moral, political) obligations as distinguished from legal ones. Is it a valid distinction, can a distinction really be made between legal and non-legal norms? If so, what constitutes the difference? What is the basis of obligation in both cases?
The Scope of Individual Opinions in the World Court
Authors: Jhabvala Farrokh
Published: July 2009

The 1966 decision of the International Court of Justice setting aside the applications of Ethiopia and Liberia, and consequently dealing a mortal blow to efforts which had sought a judicial resolution of the Namibia dispute, has come to be viewed as a watershed in the history of the Court. From the standpoint of the Court's procedure, the South West Africa decision was noteworthy because it produced some strongly-worded individual opinions that appeared to deal with questions which had been before the Court but had not been dealt with by the Court's Judgment. The publication of these opinions sparked a controversy over the proper scope of expression available to individual judges — a controversy that still remains to be resolved. The Court probably discussed this issue in its private deliberations on the 1966 Judgment but did not take any public position on the subject. The only indication of the Court's concern was a “declaration” by President Spender in which he analyzed the limits that individual opinions ought to observe. Spender concluded that the scope of individual opinions must be determined by the fact that they are “directly connected with and dependent upon the judgment;” that the judgment is the “focal point of the different judicial views expressed;” that “in principle (individual) opinions should not purport to deal with matters that fall entirely outside the range of the Court's decision;” and, finally, that “there must exist a close direct link between individual opinions and the judgment of the Court”.
Repatriation of Refugees under International Law
Authors: van Krieken Peter
Published: July 2009

This article deals with repatriation. It is now generally agreed that repatriation should be considered the best of the durable solutions to refugee problems, if, of course, it is a feasible option. In view of the strength of the bond between a refugee and his country of origin, promotion of repatriation would seem to be advisable, unless it is clear that the returnee would face serious problems upon his return. Anyone who has a well-founded fear of being persecuted should, of course, be considered a genuine refugee, and it would be quite wrong to put any pressure on such a person to return to a country which he fled for legitimate reasons. The same would be true for the displaced person who left his country owing to man-made or natural disasters. In general, the stay abroad of refugees and displaced persons is not necessarily unlimited and due attention should therefore be paid to fundamental changes in the circumstances in the country of origin, and even to relevant acts of the person concerned.
Value maintenance in the Young Loan Arbitration: History and analysis
Authors: Hahn Hugo J.
Published: July 2009

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.
Treaty interpretation in the legal theory of Grotius and its influence on modern doctrine
Authors: Vitányi Béla
Published: July 2009

The application, or putting into effect, of any legal act presupposes a logically prior stage: its interpretation. Everyone who applies a legal act is interpreting it, and, in doing so, is, consciously or unconsciously, following a certain method. Viewed as an intellectual exercise, legal interpretation presupposes the existence of an act creating or determining rights and obligations, prescribing action or abstention from action: in short, designed to give rise to legal consequences. Every system of law deriving from formal sources necessarily involves some such process. On the other hand, it is difficult to speak of legal interpretation properly so called in the context of a system of moral precepts such as the law of nature, which remain more or less indefinite and which are arrived at by means of conjecture based on pure reason, and do not entail any immediate juridical consequences. Gény put it this way:

“Proceedings on the assumption of the absolute power of human reason to discover the laws of human nature, both in principle and in detail, the natural law school intended to create, by the mere force of thinking, a complete system of absolute, immutable, directly and universally applicable law that the legislature had only to put into words,…”
Foreign investments in developing countries – Legal personality of multinationals in international law
Authors: Kokkini-Iatridou D. , de Waart P.J.I.M.
Published: July 2009

Multinational Enterprises (MNEs), in the terminology of the United Nations also called Transnational Corporations (TNCs) have developed organizational structures which are so complex that the primary, if not the only, legal concern in international economic relations is no longer the protection of investments in developing countries, as was the case in the 'sixties, but the protection of those countries themselves, and even of (hightly) developted countries.
The right of overflight over strait states and archipelagic states: Developments and prospects
Authors: de Vries Lentsch P.
Published: July 2009

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 taking of foreign property under international law: a new legal perspective?
Authors: Verwey Wil D. , Schrijver Nico J.
Published: July 2009

Few subjects are as controversial in international law today as the taking of foreign property. Many of the developing countries assembled within the framework of the semi-official Group of 77 (G. 77) claim that many of the principles and rules pertaining to the protection of foreign property traditionally adhered to by Western developed countries have lost their legal significance; in particular, as a result of legal developments induced by relevant UN resolutions. The question is, to what extent this claim is correct; to what extent the traditional rules have indeed been replaced by new ones, and what the contents of these new rules might be. The present study tries to answer this question, and sets out to review and analyze: first, the main doctrines of traditional customary law concerning the taking of foreign property (Part 2); secondly, the relevant UN resolutions relative to this subject (Part 3); and thirdly, state practice as it manifests itself in the form of one multilateral and 195 bilateral investment protection treaties concluded up to 1983, both between developed and developing countries and amongst developing countries inter se. (Part 4). On the basis of this review and analysis conclusions are drawn in Part 5.
Reciprocity in the jurisdiction of the International Court
Authors: Thirlway H.W.A.
Published: July 2009

In any field of legal study, there are certain terms which, while not corresponding to distinct fundamental concepts, come to acquire currency as regular symbols or building-blocks in legal argument, either through their inclusion in some key text, or through being recognised as convenient encapsulation of a bundle of concepts or conditions. The generally well-recognised danger in the use of such symbolic notation is that the term in question may come to be used with insufficient regard to the nucleus of ideas which existed before it was affixed as a label, and the manipulation of which it was merely intended to facilitate. Furthermore, what may be called the “common” meaning of the term in question – the meaning it has in a non-legal or non-specialist dictionary – may exercise a surreptitious influence, causing the legal meaning of the term to drift in a manner unjustified by legal considerations. For these reasons, such terms need to be scrutinised from time to time in the light of their origin and background, in order that such drifts may be detected, and the danger avoided of legal exactitude being prejudiced by linguistic convenience.
Removal of installations in the Exclusive Economic Zone
Authors: Peters Paul , Soons Alfred H.A. , Zima Lucie A.
Published: July 2009

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.
International liability for injurious consequences arising out of acts not prohibited by international law
Authors: Akehurst M.B.
Published: July 2009

When the International Law Commission adopted a plan for its future work on State responsibility in 1970, it decided to set aside for separate treatment “questions relating to responsibility arising out of the performance of certain lawful activities — such as spatial and nuclear activities… [o]wing to the entirely different basis of the so-called responsibility for risk.”
From Yalta to Helsinki: developments in international law
Authors: Alting von Geusau F.A.M.
Published: July 2009

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”.
The regime of navigation on international waterways: Part III: Substantive rights and duties
Authors: Vitányi B.K.J.
Published: July 2009

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.
Surinam's road from self-government to sovereignty
Authors: Bos Maarten
Published: July 2009

On 28 February 1667, Commander Abraham Crijnsen, with a squadron of three sail and a number of small craft carrying three hundred soldiers, all in the service of the County of Zealand, came up the Surinam River in the then English colony of Guiana.
Classification of the rules of international law according to spheres of validity
Authors: Post H.H.G.
Published: July 2009

Hans Kelsen is undoubtedly among the foremost jurists of this century. Roscoe Pound, himself not an insubstantial figure in the field, considered him “un questionably the leading jurist of the time”. Kelsen occupied himself in particular with three branches of law: constitutional law, legal philosophy, and international law.
The enforcement of International Fisheries Agreements
Authors: Koers Albert W.
Published: July 2009

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.
“Carifta” and Association
Authors: Meijers H.
Published: July 2009

Questions of international law arising in connection with the “Agreement Establishing the Caribbean Free Trade Association” (Carifta); when Carifta Territories seek to conclude an association agreement in particular, questions of capacity considered in the light of the dependency of the majority of Carifta Territories (section 2), in the light of Articles 30—Relations with International Organizations— and 32(2) —Association— (section 3), and in connection with the existence of a Commonwealth Caribbean Heads of Government Conference (section 4).
Certain legal aspects of Anglo-Irish relations
Authors: Johnson D.H.N.
Published: July 2009

The relations between the United Kingdom and the Republic of Ireland are beset with so many pitfalls and have their roots in such remote history that it will be as well for this article to begin with a fairly precise definition of terms.
Compensation for Dutch property nationalized in East European countries
Authors: van Wees G.N.J.
Published: July 2009

Since the end of the Second World War the Governments of several States have taken a series of measures designed to expropriate or nationalize private property of diverse kinds belonging to nationals as well as to foreigners. In Eastern Europe, particularly, entire sectors of the nationalizing States' economies were affected by such measures.
International control of the legitimate trade in narcotic drugs
Authors: Bogaard W.
Published: July 2009

This article attempts to review the international regulations concerning the control of legitimate trade in narcotic drugs. This necessitates an examination of what narcotic drugs are, their social, medical and economic aspects and whether the control exercised is reasonably proportionate to any dangers the various drugs may present. Up to now eleven multilateral agreements on drugs control have been concluded. It is worth examining whether they show some correlation and, if so, what kind.
International law and the maintenance of peace
Authors: Röling Bert V.A.
Published: July 2009

Can international law help to maintain peace? If so, which areas of international law are relevant to the problem of war and peace? For a long time international law merely recorded that there was a distinction between the law of peace and the law of war, jus pacis and jus belli, a distinction based on the fact that there was a substantial difference between friend and foe, and that the enemy relationship could be one of life and death. This is typical of an underdeveloped legal community. The national legal order no longer recognizes the enemy relationship in the national context. This relationship only fits into a structure lacking central authority and central power. Such as a structure of sovereign States which determine their own way of life and are responsible for their own security. A structure of this kind is a polemogenous one in which the power struggle is considered the ultima ratio. The price of national sovereignty is occasionally war, The price of lasting peace will inter alia be interference with unlimited national sovereignty, restriction of the individual country's freedom of decision in matters concerning armaments, economic structure, ideology and culture, environmental protection and national law.
Foreign deserters and asylum in the Netherlands: the case of Ralph J. Waver
Authors: Oostvogels S.A.M.
Published: July 2009

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 aliabecause 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.
Reaffirmation and development of international humanitarian law applicable in armed conflicts: the first session of the Diplomatic Conference, Geneva, 20 February – 29 March 1974
Authors: Kalshoven Frits
Published: July 2009

When the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was officially opened on 20 February 1974 by the Swiss Minister for Foreign Affairs, Mr. Pierre Graber, much preparatory work had preceded this event. Some of this was recorded in earlier Volumes of this Yearbook. We will first continue this record with a description of the events which took place since the last report (June 1972) and then describe the proceedings of the Diplomatic Conference itself.
Misconceptions about international (commercial) arbitration
Authors: Stuyt A.M.
Published: July 2009

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.