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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 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 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 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 addresses the manner in which the International Law Commission sees its own output in relation to custom. While in the Conclusions and Commentary on the Identification of Customary International Law it dedicates specific sections to ‘teachings of publicists’ and judgments, the Commission chose not to dedicate a sub-heading to its own work, instead mentioning it in passing in the commentary preceding the ‘Significance of certain materials for the identification of customary international law’ section. This chapter argues that the Commission did not appropriately grapple with its own role in relation to custom: despite the peripheral participation of States in its work, the International Law Commission’s output has at times fundamentally shaped customary rules, and this is not reflected in the Conclusions and Commentary. The chapter concludes that the problematic position of the International Law Commission on this subject is the triumph of pragmatism over accuracy. This is symptomatic of deeper problems with the project as a whole – the artificiality of the two-element approach, the excessive emphasis on State practice, and the impossibility of extricating ‘identification’ from ‘formation’ of custom. A closer look at the Commission’s purported mirror-image reveals distortions more akin to a looking-glass.

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.

Against the backdrop of the inconclusiveness of Conclusion 4(2) regarding the role of international organisations in the formation of custom, this chapter elaborates on the reasons behind this lack of consensus and how this has affected the end-product of the International Law Commission’s work; that is the Conclusions incorporated in the International Law Commission’s 2018 Report. Such an enquiry is, according to this chapter, the key to addressing the shortcomings of the International Law Commission’s approach and to understanding whether the relevant Conclusion bears a strong normative claim to hardening into lex lata.

The chapter presents and critically assesses the view on non-State actors expressed in the Conclusions on Identification of Customary International Law adopted by the United Nations International Law Commission in 2018. Conclusion 4(3), setting the requirement of practice, stipulates that ‘conduct of other actors is not practice that contributes to the formation, or expression, of rules of customary international law, but may be relevant when assessing the practice referred to in paragraphs 1 and 2’ (i.e. practice of States and international organizations). Conclusion 9, dealing with the requirement of opinio juris, does not mention non-State actors at all. The chapter first traces the history of the conclusions in the International Law Commission work and then casts some doubt on the position that the International Law Commission has adopted in light of the views of other actors. It shows that the International Law Commission fails to do justice to the complex relationship that nowadays exists between non-State actors and customary international law.

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.

This chapter examines the role of resolutions in the International Law Commission Conclusions on Identification of Customary International Law. The analysis unfolds along three lines of inquiry. The first one critically analyses the methodology devised by the International Law Commission to ascertain the existence of a customary rule with a view to understanding how it works in the institutional setting of international organizations. The second one examines the definition of resolution contained in the Conclusions and compares it with the mainstream literature on the concept of resolution. The third one evaluates the practical implications of the International Law Commission Conclusions by using the resolutions of the United Nations General Assembly as a case study. An argument is made that the International Law Commission Conclusions do not add either certainty or sophistication to the process of ascertaining customary rules, thus failing to provide authoritative guidance to practitioners in the field of international organizations’ practice.

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.