THE PERPLEXITIES OF MODERN INTERNATIONAL LAW This page intentionally left blank THE HAGUE ACADEMY OF INTERNATIONAL LAW THE PERPLEXITIES OF MODERN INTERNATIONAL LAW by SHABTAI ROSENNE 2004 MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN90 04 13692 4 © 2004 Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprint Martinus Nijhoff Publishers. http://www.brill. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands. To E.R. . - - הּנָוֹשׁלְ לעַ דסֶ חֶ תרַוֹתוְ המָ כְ חָבְ החָתְ פָּ הָיפִּ " " ו כ א ל ילשמ She openeth her mouth with wisdom; And the law of kindness is on her tongue. Proverbs 31:26 This page intentionally left blank PREFACE This is a revised and updated version of the General Course in Public Inter- national Law which I delivered at the Hague Academy of International Law in the year 2001. That General Course was published in volume 291 of the Recueil des cours/Collected Courses of that Academy under the title The Perplexities of Modern International Law. The Curatorium has agreed that I could publish this new and revised edition. Apart from correction of minor typographical errors, the principal changes consist in the introduction of two sections in chapter VIII, on maritime spaces, namely sections 8.09 and 8.10, on the protection and preservation of the marine environment and on marine archaeology, one section in chapter IX, section 9.06 on the protection of the environment, and two sections in chapter XII, sections 12.10 and 12.11 on conferences and the international civil service. Those sections were included in my lectures and seminars, but for reasons of space had to be omitted from theoriginalpublication.Ihavealsobroughtthematerialuptodate,totheend of the year 2002. This is principally a matter for the adjustment of references inlightofnewlypublishedprimarysources.Otherwisethematerialisessentially as it was originally published. With pleasure I acknowledge the valuable assistance that I received from MrJonathanStanley,BA(Hons.)(Toronto),aLondon-based,free-lancelegal researcherandmediacommentatoronlaw,whohasbeenpersistentinferreting out obscure and not so obscure books, papers and other documents that I required.Icouldnothavecompletedtheselectureswithouthisassistanceand most helpful critiques. My son Daniel helped me with the technical aspects of the section on cyberspace (§ 9.05). I also wish to thank others who helped me by responding to my repeated requests for material: Mr Alan Baker and the staff of the Office of the Legal Adviser of the Israel Ministry for Foreign Affairs and the documents officer, Mr Richard Simmonds, of the Permanent MissionofIsraeltotheUnitedNationsinNewYork,andthelibrariansofthe HebrewUniversityandNationalLibraryinJerusalem,thePeacePalaceLibrary viii PREFACE inTheHague,theMaxPlanckInstituteforComparativePublicandInternational LawinHeidelberg,theCenterofOceansLawandPolicyoftheUniversityof Virginia School of Law and the Treaty Section of the UN Office of Legal Affairs.IamalsogratefultoProfessorWyboP.Heereforpreparingtheindex to this volume. Other libraries that I have frequently consulted through their internet services are the Library of Congress and the British Library. I would also like to thank Ms Annebeth Rosenboom and her colleagues for seeing this book through the press. Jerusalem, April 2003 Sh.R. TABLE OF CONTENTS PREFACE vii ABBREVIATIONS xv CASES xix CHAPTER I SOME WORDS OF INTRODUCTION: THE UNITY OF INTER- NATIONAL LAW 1 1.01. The transformation of international law 3 1.02. The impact of the nineteenth century 6 1.03. An alternative to war: arbitration 11 1.04. What is international law today? 15 1.05. The accommodation of regional and sectorial concerns 18 CHAPTER II WHERE TO FIND THE LAW 25 2.01. The general thesaurus of international law 25 2.02. The bilateralism of applied law 30 2.03. International customary law 34 2.04. The intertwining of customary and treaty law 39 2.05. General principles of law and equitable principles 40 2.06. Judicial decisions 43 2.07. Resolutions of international intergovernmental organizations 47 2.08. The teachings of publicists 51 2.09. The progressive development and codification of international law 53 2.10. The Sixth Committee of the General Assembly 59