This chapter introduces the fundamental question which is addressed from different perspectives by the authors in this Agora: what does the 2003 Iraq intervention teach us about the relation between international law and politics? This chapter briefly discusses the relevance of the work by Martti Koskenniemi to that question and it treats the different points of view put forward in the contributions. It also notes that one possible position on the intervention in Iraq is not considered in this Agora, nor in the debate more generally—viz. that an intervention would be legal but illegitimate. However, if this position were examined, it could serve discussion about the political preferences which sometimes explain the choice of international legal arguments. This chapter concludes that from the contributions in this Agora a complex image emerges of the relation between international law and politics: beyond the relative indeterminacy of the law and beyond the collapse of the separation between international law and politics, an international rule of law re-emerges as a specific way of doing politics.

In this brief paper, provoked in part by Pieter Kooijmans' The Doctrine of the Legal Equality of States, the author returns to his 2004 book, Great Powers and Outlaw States and reads it in light of criticisms by two sympathetic interlocutors, and in the shadow of the 2003 Iraq War and more recent efforts to conceptualise the possibilities of constraining hegemony (when it threatens the ‘rule of law’) and promoting it (when it might secure some superseding political ends).

The legality and legitimacy of the Iraq war in 2003 has been widely discussed before, during and after the hostilities. Though hardly anyone questions the lack of a legal basis for the military operation in Iraq, it has been argued that other grounds could have justified the undertaking of military action. The political support of the Dutch government for the American-led invasion in Iraq needs to be understood along these lines. This contribution focuses on the legal and intellectual trends that can be observed preceding the support given to the 2003 war. These trends could be summarised as a move from legality towards legitimacy, from positive law to morality, broadly understood. The support of the Dutch government for the war can be interpreted as a reflection of a certain discontent with existing international law and of changing attitudes vis-à-vis the international order. The following questions will be raised in this contribution: What was really relevant in this context: the international legal order of the Charter of the United Nations or some other international order dominated by certain values other than the ones embedded in the Charter? Moreover, what kind of a war was the invasion of Iraq: a legal war on the basis of international law broadly understood or an ethical war in accordance with the criteria of the just war tradition? These questions will be dealt with from the Dutch constitutional perspective and from the perspective of ethics.

Those countries, including the United Kingdom, using force in Libya in 2011 have taken much greater care to ensure that their actions are underpinned by legality. This suggests a return to respect for the jus ad bellum, but as the operation against Libya unfolded it became clearer that some of the problems that undermined the legality and legitimacy of the invasion of Iraq 8 years earlier had not been avoided, which raises the question of how such operations can be kept within the strict bounds of the law.

A number of investment cases in the aftermath of the Argentine economic crisis 2001/2002 have addressed important issues of state of necessity. The tribunals affirmed that the codification of this defence in the 2001 ILC Articles on State Responsibility largely reflects customary international law and they rejected the argument that the highly complex nature of necessity characterized it as a non-justiciable political question. ICSID and other tribunals have also concurred on some crucial aspects of the necessity defence, like the potential qualification of economic emergencies as necessity situations or the fact that necessity can be invoked only in extreme cases. Nevertheless, the application of these principles to the actual situation in Argentina led to divergent and partly conflicting outcomes. After assessing the relationship between derogation clauses contained in many investment treaties and state of necessity this contribution focuses on specific aspects which entitle a State to invoke necessity as a ground for not fulfilling its obligations. It pleads for a proportionality approach in determining whether the actual measures adopted should be regarded as the only means to safeguard State interests. Similarly, it supports a nuanced assessment concerning the contribution element by requiring that it be substantial.

It is a truism that there is no legislator at the global level identical to the legislator at the national level. The principle of state sovereignty is difficult to reconcile with the idea of a world legislator. This was true in previous centuries. It is still true at the beginning of the 21st century. The role of the state is predominant in the development of international law, whether it is through treaties, customary law or any other source of international law. International law is first and foremost made by states.

On Sunday 26 July 1981, “Radio Paradise” made experimental transmissions in Dutch and intended for reception by the general public in the Netherlands, without having obtained permission from the appropriate Dutch authorities. The transmissions were carried out from a ship off the Dutch coast, outside territorial waters. It was announced that regular broadcasts to the Netherlands would begin shortly afterwards.

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.

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.

In a young man's article appearing in this Yearbook in 1983, the author discussed certain law of the sea and other aspects of ‘direct action’ protests carried out at sea by peace or environmentalist non-governmental organisations (NGOs). Since that article was written, the objects and frequency of such protests have greatly expanded, the legal underpinnings in human rights law of a ‘right of peaceful public protest’ have been further affirmed and clarified and a body of state practice has emerged concerning the limits of and controls that may be placed upon the exercise of that right at sea, and upon the exercise of international rights of navigation or overflight for the purposes of public protest. Since 11 September 2001, moreover, the international community's increased concern with terrorist threats has put in question the compatibility of maritime direct action protests with: (i) the security of each ship subjected to such a protest (‘target ship’); and (ii) the security of the next port of call of a target ship which has been boarded and ‘occupied’ at sea by NGO protesters, whether or not they are still aboard her when she approaches port.

During the last century the use of water in Western Europe has increased enormously as the result of the growth of the population and the expansion of industrial and agricultural activities. At the same time and for the same reason the quality of the available fresh water resources has also rapidly deteriorated. The river Rhine in particular, once so often praised for its beauty, is nowadays, especially in its downstream sections, little more than an open sewer. This river has become seriously polluted with organic substances, chloride, heavy metals and other chemical pollutants. In recent years moreover a new form of pollution has made its appearance, namely the heating of the water through the discharge of cooling water by (nuclear) power stations. The heavy pollution of the Rhine not only affects the ecological balance but also other interests, such as the supply of drinking water, the use of the water for industrial purposes, agriculture, horticulture and recreation.

In papers dealing with sovereign immunity, states are quite often divided into those advocating the so-called absolute immunity, and those that plead for the so-called restrictive immunity. Here, the socialist states are usually classed among the supporters of the absolute theory.

This article describes the role of legal advice and legal advisers in the policy-making process toward the 2003 invasion of Iraq, on the basis of the report of the Davids Committee in the Netherlands and the documents declassified in the course of the UK's Chilcot Inquiry. The controversial nature and seemingly weak legal basis for the 2003 invasion of Iraq prompted much public and academic discussion, even leading to the leaking of otherwise confidential legal memoranda from government lawyers to the media. Unprecedented and (semi)public inquiries were carried out into the policy-making processes and motives for resorting to the use of armed force, including the role of legal advice and legal advisers. In the Netherlands, legal advisers were at a disadvantage because of the hierarchical structure in which they are placed, and because the basic policy was set at a very early stage. The legal advice rendered in the United Kingdom was given far more consideration and prominence. Yet, when advice and policy started to diverge, the formal structure in which legal advice had to be requested from the Attorney General became subject to manipulation as to timing and, perhaps, substance. This description and analysis reveal common and familiar themes regarding the role, responsibilities, and perceptions of legal advice in foreign policy.

Attempts at the United Nations Conference on the Law of the Sea at Geneva in 1958 to define the legal characteristics of islands for the purpose of delimiting continental shelf boundaries proved abortive, despite the presentation of several proposals and draft amendments to the relevant provision of the International Law Commission's 1956 Draft Articles Concerning the Law of the Sea. One difficulty the Fourth Committee faced arose from its formalistic approach. It seemed reluctant to look behind the word “islands”, and appraise different categories of islands differently. A prime example of the confusion this nominalism caused is to be found in the report of Mr. Gihl's intervention in this regard. He reasoned about offshore and coastal islands on a single continental shelf with the mainland coast in terms of islands “having a continental shelf of their own”.

One of the key functions or purposes of international law (and law in general for that matter) is to provide long-term stability and legal certainty. Yet, international legal rules may also function as tools to deal with non-permanent or constantly changing issues, and rather than stable, international law may have to be flexible or adaptive. Prima facie, one could think of two main types of temporary aspects relevant from the perspective of international law. First, the nature of the object addressed by international law or the ‘problem’ that international law aims to address may be inherently temporary (temporary objects). Second, a subject of international law may be created for a specific period of time, after the elapse of which this entity ceases to exist (temporary subjects). These types of temporariness raise several questions from the perspective of international law, which are hardly addressed from a more conceptual perspective. This volume of the Netherlands Yearbook of International Law aims to do exactly that by asking the question of how international law reacts to various types of temporary issues. Put differently, where does international law stand on the continuum of predictability and pragmatism when it comes to temporary issues or institutions?

This article analyses Article 290:1 of the United Nations Convention on the Law of the Sea (UNCLOS), concerning the elements required for the prescription of provisional measures, in the context of the Order of the International Tribunal for the Law of the Sea (ITLOS) of 11 March 1998 which prescribes provisional measures in The M/V ‘Saiga’ (No. 2) (St Vincent and the Grenadines v. Guinea) Article 290:1 provides:

If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the environment, pending the final decision.

The illicit transport of WMD materials by sea combines contemporary terrorist and proliferation threats with maritime shipping realities to form unprecedented dangers. To counter this threat to international peace and security, worldwide efforts to increase capabilities and cooperation for the interdiction of vessels that are engaged in the trafficking of such materials have in recent years been on the rise. This strengthened emphasis on maritime interdiction, however, is also the subject of much international debate in which, unfortunately, the international law issues that are involved are frequently inaccurately represented. On the one side, too narrowly constructed views of the existing international legal possibilities are often set against expectations of sweeping expansion of maritime interdiction action beyond these confines. On the other side, suggestions of overly broad interdiction possibilities also repeatedly surface. As such, both sides fuel concerns that legal norms will be sacrificed for the objective of countering proliferation and terrorist threats by sea. This article addresses such suggestions by analysing the current scope of maritime interdiction possibilities in international law and considering the extent to which State practice may reflect action and policy in conformity with the international legal framework. The article concludes that the present state of affairs and the ongoing developments involving maritime interdiction of WMD reflect the international law process of constant adjustment by which the essential economic, navigational and security interests that are at stake are held in balance.

This contribution offers some theoretical and legal perspectives on WTO compliance. It draws on current theories of compliance with international law in determining that WTO compliance is essentially norm-driven and liberal/institutionalist in character. The two key models of compliance at work in the WTO are the management model, which employs persuasive techniques in order to induce compliance, interspersed with the enforcement model with its coercive approach towards compliance. The latter model is clearly at work in the compliance decisions of the DSB, where a complainant Member may seek authorisation to impose countermeasures in the form of suspension of concessions or other obligations. Although even here a range of techniques are employed on an individual basis by the complainant and respondent parties as well as collectively by the membership in order manage the process of compliance. Thus, a range of ‘softer’, more persuasive, managerial techniques exist alongside coercive, enforcement ones in order to encourage compliance with WTO dispute settlement decisions and to foster normative consensus among the Members. The two models of compliance work in tandem across a broad spectrum of compliance activities and are so intertwined with one another as to form a management-enforcement ladder of compliance with WTO law. However, this ladder of compliance is less successful in accounting for some of the more egregious forms of WTO non-compliance. Instead, such non-compliance is better understood on the basis of realist (or even rationalist) theories of compliance, which may include the efficient breach theory.

On 11 September 1992, a Chamber constituted by the International Court of Justice delivered a long-awaited judgment in the case concerning the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras.