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.

After 9/11 a number of governments committed their armed forces to military operations abroad and introduced far-reaching emergency restrictions of individual rights without substantial parliamentary scrutiny. In many cases, the executive branch argued that it needed considerable leeway to counter terrorist threats, and most legislatures followed suit. The article looks at the operational difficulties of parliamentary involvement from a comparative perspective, focusing on the legal situation in Germany, the United States and the Russian Federation. It identifies the purpose of parliamentary review and demonstrates that the principle of the separation of powers shall not be renounced in times of global threats or replaced by the fusion or shift of powers. On the contrary, the separation of powers as the basis of a modern constitutional democracy strengthens democratic control and enhances individual liberties, while not putting into question the executive's flexibility. The legislatures' participation in the most important decisions leads to a stable and sustainable use of executive power. However, the division of competences must observe the respective strengths and weaknesses of the branches of government. Thus, it is not the function of Parliament to regulate the operational details of military operations.

In response to Iraq's forcible occupation of Kuwait in the summer of 1990, the United Nations Security Council adopted twelve resolutions that year.

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).

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.

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.

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.

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.

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?

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”.

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.

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.

The international legal community seems to be in a state of transition. Contemporary perspectives of international law are still generally dominated by traditional concepts of international community as a grouping of sovereign nation States the rules of which are in in principle based on consent. But at the same time there exists a prevailing impression that traditional international law is too cumbersome and archaic in order to cope with the pressing needs of mankind. A ‘World Public Order’ is demanded by not small an amount of political and legal writers.

On 21 June 1985 the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Law on International Commercial Arbitration, six years after the Commission had decided to request the Secretariat to commence work on a model law on arbitral procedure.

Apart from the proverbial exception to the rule, all changes in the composition of the international community of States resulting from State succession, whether through decolonization or through the uniting or separation of States, are reflected in the membership of the United Nations. In the first 50 years of its existence the number of member States of the organization has almost quadrupled, and this growth is to a large extent attributable to a multitude of cases of State succession, the majority of which resulted from decolonization. When these ‘new’ States began to outnumber the ‘old’ ones, State succession, and in particular the international legal implications of State succession, became a ‘hot issue’ on the UN agenda, especially on the International Law Commission's (ILC) agenda.

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.