Under the traditional rules of international law, the sea was divided into the high seas and the territorial seas and in each case different rules and regulations obtained. As for the exploitation of fishery resources, the coastal state possessed unquestioned rights to regulate any such exploitation within its territorial sea and to apply its domestic legislation fully to any person engaged in such activities. Similarly, the coastal state was free to prohibit fishing by foreigners in its territorial sea and thus to monopolize those fishery resources. On the high seas, however, no state was allowed, at least in principle, to impose its jurisdiction upon any foreign vessel, since fishing on the high seas fell under the general regime of the high seas. The existence of these two disparate regimes, namely, exploitation under the full control of the coastal state and exploitation free from interference by any country, was a fundamental presumption underlying the exploitation of fishery resources.

1. The purpose of this article is to examine, even at the risk of magnifying them somewhat for clarity, the potential dangers that some recent developments usually studied from other angles—the jus cogens theory, the distinction between international crimes and international delicts, the concept of a rule of general international law, the notion of obligation erga omnes—bring in their wake for the future of international law as a normative system intended to perform certain functions.

The United Nations Convention on the Law of the Sea is a fact. It exists. Whether or not it becomes a fully operational treaty-signed, ratified, in force, widely supported, generally followed-it is and will be the cause of significant effects. Its very existence modifies political, economic, and legal relationships in countless ways whose direction and intensity we can predict only in a most speculative way. What we can say in advance is that the effect of the Convention— its own fate as a treaty and its impact on international relations— will substantially depend on how it is perceived.

The result of the application of equitable principles must be equitable. … It is … the result which is predominant; the principles are subordinate to the goal.

Recognition of governments serves three functions in the international legal system: ensuring that only regimes clearly deserving such status are accepted as governments of states, assuring new governments that others will respect their status, and informing courts, government agencies, and nationals of recognizing states that a particular regime is in fact the government of another state. Lately, some statesmen and a respectable number of legal scholars have come to view recognition of governments as causing more difficulties than it is worth as it is now used. In particular, they suspect that decisions whether to recognize a new regime often depend more on its character or policy than on its ability to meet the objective test of effectively ruling its state, and they believe that current doctrine on the effects of recognition or nonrecognition creates unnecessary confusion.

The question of the legal validity of the acts and decisions adopted by international organizations in excess of their authority has attracted the attention of international lawyers, as well as international courts and tribunals, in recent years. However, no general principles or criteria for determining such validity have as yet been formulated by the international community. In the meantime, the question has continued to give rise to controversy within and outside international organizations and to gain in importance, because of persistent procedural irregularities and the increasing tendency of some of the organizations to take measures that are not expressly provided for in their constitutive instruments but that they consider necessary or essential for the effective discharge of their mandates.

The concept of “soft law” in international law has been familiar for some years, although its precise meaning is still debated. A distinguished international lawyer, Professor Ignaz Seidl-Hohenveldern, delivered a series of lectures on International Economic “Soft Law” at the Hague Academy of International Law in 1979. The concept as applied to economic affairs is of particular interest in relation to the subject matter of this article.

The extraterritorial reach of national economic regulation, particularly of antitrust laws, is one of the most controversial topics in the international legal community, largely because that community has failed to develop jurisdictional principles that both accommodate the regulatory needs of regulating states and are discriminating enough to avoid impinging on the legitimate interests of other states. As a result, international conflicts related to the assertion of jurisdiction have greatly increased in both frequency and intensity.

Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme law of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.

The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Convention) provides for a truly international arbitration machinery, operating under the auspices of the International Centre for Settlement of Investment Disputes (ICSID).

Public international air law is based on two principles. The first recognizes each state’s full and absolute sovereignty over the air above its territory and territorial waters, including the right to impose its jurisdiction over such airspace. Thus, a state may require any foreign aircraft in its airspace, even if only briefly in transit, to comply with its air transport regulations, for example, those concerning the aircraft and its crew, navigation, and the environment. This right, however, is subject to those international treaty obligations the state has assumed in the interest of safe and efficient air transport. The Convention on International Civil Aviation (hereinafter referred to as the Chicago Convention), generally regarded as the Magna Charta of public international air law, requires each contracting state to “collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.” To this end, the International Civil Aviation Organization (ICAO) was granted the power to adopt international standards and recommended practices and procedures dealing with matters such as communication systems and air navigation aids, rules of the air and air traffic control practices, as well as registration and identification of aircraft. Contracting states, however, retained the right to depart from such standards or recommended practices, provided they notified the Organization of the differences between their national regulations and those prescribed by an international standard.

Multilateral treaty making, sometimes called the "international legislative process", occurs in a variety of forms and under the auspices of many international organizations. Concern that insufficient information is available about the way treaties are negotiated in different forums and that the process is haphazard led to a proposal for its review in the Sixth Committee at the 32d session of the United Nations General Assembly. Acting upon.this initiative, the General Assembly adopted Resolution 32/48, which called upon the Secretary- General to report on the techniques and procedures used in the elaboration of multilateral treaties. In order to assist in the preparation of this report, comments were requested from states, specialized agencies and other intergovernmental organizations, and the offices of the United Nations.

The July 1982 issue of this Journal (pp. 532-54) published an article written by Professor Mohamed ElBaradei, The Egyptian-Israeli Peace Treaty and Access to the GulfofAqaba: A New Legal Regime, in which he gives a contextual interpretation and evaluation of the regime laid down by Article V(2) of the Treaty of Peace. Article V(2) reads:

The United Nations Convention on Contracts for the International Sale of Goods was adopted on April 10, 1980. The chief reason for its adoption was that the prior Uniform Law on the International Sale of Goods (ULIS) and its supplementary Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) had not received widespread support.

One often reads or hears that a state has a right to exclude all aliens from its territory unless a treaty obligation requires admission. Frequently, that proposition prefaces discussion of such issues as immigration quotas, expulsion and deportation of aliens, justiciability and procedural due process in litigation involving immigration questions, and the duty of states to protect aliens. Sometimes the proposition is colored by such words as “of course,” “no longer open to serious question,” or “unquestionably”—clues, at least, that some questions and doubts may be in order.