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This chapter examines the meaning and function of principles of treaty interpretation in general international law. Customary international law on treaty interpretation is partly and mostly codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT), which are discussed in their historical context. The chapter explains that even if treaty-based, treaty interpretation is governed by principles rather than rules. It also provides an introduction to some of the Appellate Body's techniques of interpretation and reflects on the need and status of special principles of treaty interpretation.

This chapter discusses the process of codification. Topics covered include: the move to codification, the part played by the International Law Commission and the International Law Association, the Waldock Reports, the relationship with the law of treaties, the question of new States, semi-sovereignty, dispositive treaties, and finally the adjustments made at the Vienna Conference. It is shown that those involved in the codification were unable to deal with the problem of succession in a way that did not draw within it questions of identity and status, or conclusions about the relationship between international and municipal law.

This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.

This chapter makes the case for the inclusion in the Rome Statute of a distinct and inchoate crime of ‘direct and public incitement to aggression’. A similar offence was included in the International Law Commission's draft Code of Offences Against the Peace and Security of Mankind in 1954 yet omitted from the 1996 draft, a move which is herein considered. The jurisprudence of the ad hoc international criminal tribunals provide guidance on the criminalization of incitement to crimes of an international dimension, especially cases dealing with charges of hate speech, war propaganda, and incitement to genocide, war crimes, or crimes against humanity. The Rome Statute itself, and its drafting, is also discussed, particularly with regards the crime of aggression.

This chapter covers the proliferation of international courts and tribunals, and the perceived problem of fragmentation of international law. It first describes the proliferation of international judicial bodies. This has seen the creation of more than a dozen new international adjudicatory bodies in the past two decades. It then proposes possible reasons for the growth in the number of international courts and tribunals. The principal reasons include the erosion of the traditional reluctance to submit disputes to third-party adjudication, and the effects of globalization. It then turns to the effects of proliferation, and explains that it can cause increased jurisdictional competition (overlapping jurisdictions) among international courts and tribunals, and also the emergence of doctrinal inconsistencies in international law. This is particularly so, in light of international jurisprudence which suggests that international courts are ‘self-contained systems’. It then briefly reviews the International Law Commission's work on fragmentation.

This chapter describes the legal status of territorial sea, international straits, and archipelagic waters around a coastal State. The author describes how territorial waters around a coastal State were debated (it now rest at twelve nautical miles), and how the sovereignty of these waters, the seabed under them, and the air space above them was ensured. The Right of Innocent Passage— especially that of warships—is then discussed. The author goes on to describe problems relating to the delimitation of the territorial waters between adjacent coastal States. The most important juridical question concerning ocean navigation discussed in the Third United Nations Conference on the Law of the Sea (UNCLOS) was the nature of the Right of Innocent Passage through international straits. The Corfu Channel decision (allowing warships and merchant vessels free transit through international states during peace time) had considerable impact upon deliberations of the International Law Commission. The author also shows how India closely monitored the extent of support to the concept of Unimpeded Transit Passage. The Chapter concludes with a discussion of drawing of baselines over archpelagic waters and their control by coastal States, with a focus on India’s interests in the Andaman and Nicobar islands. The evolution and formal acceptance of the concept of archipelagic States for the first time was a distinctive achievement of the Third UNCLOS.

This chapter discusses nationality as a condition for the exercise of diplomatic protection. Topics covered include the determination of nationality, continuous nationality, dual and multiple nationality, the effective link theory, and stateless persons and refugees. It shows that the ILC has drafted a provision extending the principles of diplomatic protection adopted for corporations to other legal persons to take account of the different features of each legal person. Draft Article 13 of the ILC provides that the principles governing the State of nationality of corporations and the application of the principle of continuous nationality to corporations, contained in Draft Articles 9 and 10, respectively, apply ‘as appropriate’, to the diplomatic protection of legal persons other than corporations.

This chapter presents a discussion on the contiguous zone i.e. the waters contiguous to and beyond the territorial sea in which States have limited powers for the enforcement of customs, fiscal, sanitary, and immigration laws. Although the Hague Codification Conference ended in failure, the contiguous zone was not eliminated, but began to be more and more a component of international practice. India has supported a twelve-mile (i.e. 24 nautical miles from the baseline of a coastal state) contiguous zone, though it did not make any formal proposal to that effect in the 1958 Geneva Conference on the Law of the Sea. The chapter concludes by discussing contiguous zones and the Right of Hot Pursuit and other issues of general security. The creation of contiguous zones in the interests of security is also discussed.

This chapter describes the access to justice by individuals in order to obtain compensation for violations of the law of war. It is shown that Resolution 2005/35 sets out basic principles and guidelines for a remedy and reparation for victims of both violations of human rights and serious violations of international humanitarian law (IHL). It is also stated how difficult it is for a victim to obtain compensation. The major hurdles include immunity of states and international organizations from civil jurisdiction in foreign states, immunity of state property, enforcing judgments on damages in foreign states, immunity of state officials, political question doctrine, the inter-state character of IHL, the non-self-executing nature of IHL, International Law Commission (ILC) draft articles on state responsibility and the individual, peace settlements and reparations for law of war violations, and statutory limitation under domestic law. Moreover, the proceedings for recovering damages before the International Criminal Court (ICC), the two ad hoc international tribunals, and the hybrid tribunals are considered. Examples of mechanisms that allow the victim to obtain compensation are also addressed.

Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management should also be integral to the meta-bargaining that produces the rules that govern everyday corporate bankruptcies. Such is not the case. In many historical circumstances—in countries with economies both advanced and developing; in situations of economic crisis and in ordinary times; in Europe, North America, and Asia—the stakeholders who mobilize to craft national bankruptcy law seldom include debtors. Debtors are also conspicuous by their absence from forums of global norm-making in which international financial institutions or international governance organizations create norms designed to guide national lawmaking. In short, a class of bankruptcy players for whom everyday bargaining over debt obligations is a matter of corporate life or death seldom appears in the forums that institutionalize the rules by which their individual fates are determined. How is this puzzle to be explained? This chapter examines hypotheses that address this issue through three research projects. The first studied the politics behind two landmark pieces of lawmaking in advanced economies—the US Bankruptcy Code of 1978 and the English Insolvency Act of 1986. The second project studied three Asian economies in the wake of the Asian Financial Crisis. The third project examines the decade-long initiatives by the UN Commission on International Trade Law to create global norms for corporate bankruptcy regimes.

Nowadays it seems that international law develops more rapidly than international society does, seeking to serve as a tractor rather than a trailer, reversing Cicero's scheme of society and law. But where this happens, the developments may be fragile and called into question. A good illustration of this proposition can be seen in the debate as to the existence in international law of communitarian norms entailing obligations erga omnes, a debate carried on almost entirely in the abstract, with little or no reference to earlier instances of international adjudication or State practice. The idea was reflected, in the Draft Articles on State Responsibility adopted by the International Law Commission (ILC) on first reading in 1996, in two unwieldy provisions, draft Article 19 (dealing with ‘international crimes of States’) and draft Article 40 (defining the ‘injured State’ to include, in the case of State crimes and in certain other cases, all States). On second reading, these proposals were radically changed. Draft Article 19 disappeared, being replaced by Articles 40 and 41 (dealing with consequences of serious breaches of peremptory norms). Draft Article 40 was transfigured, emerging as Articles 42 and 48 (distinguishing between the ‘injured State’ and other States entitled to invoke responsibility even though not individually injured by the breach). This chapter focuses on Article 48 and the accompanying notion of invocation of responsibility in the public interest.

Chapter 1 identifies the cyber threats to international security and the applicable laws. It starts by identifying the main cases of cyber operations against states of which other states were suspected. It defines what ‘cyber operation’, ‘cyber attack’, and ‘cyber exploitation’ are and classifies them. The applicable rules are then identified and the point is made that existing jus ad bellum and jus in bello rules apply to cyber operations even though they were drafted before the cyber age. Finally, the problems related to identification and attribution in cyber operations are discussed, in particular the application of the secondary rules on state responsibility, as contained in the 2001 Articles on State Responsibility adopted by the International Law Commission.

This chapter describes the efforts to create a code of international criminal law of universal application. The lessons of Nuremberg informed subsequent efforts to advance international criminal law. This meant an emphasis on individual criminal responsibility until in 1976 the International Law Commission resurrected the early interest in the notion of state criminal responsibility.

The Vienna Convention on the Law of Treaties of 1969 established a distinct hierarchy between the general rule of interpretation and supplementary means. Article 32 of the Convention subordinates the use of supplementary means to various assumptions connected with the outcome of the interpretation made on the basis of the general rule contained in Article 31. The list of the supplementary means laid down in Article 32 is not exhaustive and the Vienna Convention says nothing about the concept of preparatory works, of circumstances surrounding the conclusion of the treaty, and about the concept of other supplementary means of interpretation. These and other critical observations can be resolved by reference to indications from the comments of the International Law Commission and from international case law. The rule established in Article 32 can be considered to correspond to the international custom. The use of supplementary means of interpretation is important when the application of the general rule leaves the meaning ambiguous, obscure, or absurd. Recent international case law appears to illustrate the reasons that can lead the interpreter to find, in the supplementary means, a confirmation of the meaning emerging from the application of the general rule expressed in Article 31.

The work of the ILC constitutes an interesting illustration of a positive interplay between international law and different domestic approaches to international law. Section I of this chapter identifies the institutional ingredients that are required in order for comparative international law to obtain a sufficiently representative conception of international law. Section II explores the main tools used by the ILC on the substantive plane to draft common rules on the basis of existing and possibly divergent state practice or opinio juris. Focus is placed on customary international law insofar as general principles of international law have never been considered by the ILC as a field to be explored on its own—presumably because both codification and progressive development of international law require the Commission to base its proposal at least on some emerging state practice.

The chapter looks at community interests from the perspective of the International Law Commission. It examines both secondary and primary rules of international law, as they have been articulated by the Commission, and their relevance for the recognition and implementation of community interests. The picture which emerges, however, fits the narrative of “from self-interest to community interest” only to a certain extent. Whereas the Commission has indeed recognized, or developed, certain primary rules which more fully articulate community interests, it has been reluctant to reformulate secondary rules, with the exception of jus cogens. The Commission has more recently rather insisted that the traditional state-consent-oriented secondary rules concerning the formation of customary international law and regarding the interpretation of treaties continue to be valid in the face of other actors and forms of action which push toward the recognition of more and thicker community interests.