International Law:Theory and Practice: Essays in Honour of Eric Suy [1 ed.] 9041105824, 9789041105820

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INTERNATIONAL LAW: THEORY AND PRACTICE

ERIC SUY © photo Hilde Braet

INTERNATIONAL LAW: THEORY AND PRACTICE Essays in Honour of Eric Suy

edited by

Karel Wellens

MARTINUS NIJHOFF PUBLISHERS THE HAGUE I BOSTON I LONDON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN 90-411-0582-4

Published by Kluwer Law International, P.O. Box 85889,2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 675 Massachusetts Avenue, Cambridge, MA 02139, U.S.A. In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Printed on acid-free paper

All Rights Reserved © 1998 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers.

No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means , electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands

v TABLE OF CONTENTS Preface

XIII

Biography Eric Suy

xv

Bibliography Eric Suy

XIX

List of contributors

XXVII

Part I International Law and International Relations

1

C.F. AMERASINGHE South Asian antecedents of international law

3

M.EYSKENS Particularism versus universalism

11

R.FOQUE Global governance and the rule of law Human rights and general principles of good global governance

25

W.LANG New regionalism in a changing world order

45

R.SlJ. MACDONALD Rummaging in the ruins. Soviet international law and policy in the early years: is anything left?

61

L. REYCHLER Democratic peacebuilding and conflict prevention

83

K. SKUBISZEWSKI The end of Yalta

107

VI

Part II Belgium and Flanders within the International Legal Order

121

A. ALENIP.PEETERS Federal Belgium within the international legal order: theory and practice

123

L. VAN DEN BRANDE The international legal position of Flanders: some considerations

145

Part III Sources of International Law

159

R. MULLERSON The interplay of objective and subjective elements in customary law

161

E. ROUCOUNAS Uncertainties regarding the entry into force of some multilateral treaties

179

J. VERHOEVEN

195

Jus cogens and reservations or "counter-reservations" to the jurisdiction of the International Court of Justice K. ZEMANEK Unilateral legal acts revisited

209

Part IV Fundamental Concepts of International Law

223

G.ABI-SAAB Some thoughts on the principle of non-intervention

225

VII

B. GRAEFRATH International crimes and collective security

237

C. TOMUSCHAT International crimes by states: an endangered species?

254

Part V The Law of International Organizations

275

N.ANGELET Protest aga inst Security Council decisions

277

B. BOUTROS-GHALI The United Nations and comprehensive legal measures for combating international terrorism

287

H.CORELL United Nations Office of Legal Affairs

305

D.DORMOY Recent developments regarding the law on participation in international organizations

323

P. KOOIJMANS The Security Council and Non-State Entities as party to a conflict

333

W. REMANS The granting of observer status by the General Assembly of the United Nations to the International Federation of Red Cross and Red Crescent Societies

347

I. SEIDL-HOHENVELDERN The UNRWA special panel of adjudicators 1983-1991

363

VIII N. SYBESMA-KNOL The continuing relevance of the participation of observers in the work of the United Nations

371

Part VI The Law of the European Union

395

R. BLANPAIN Employment and labour law: the European Union

397

H.F. KOCK On the unity of European law. European law as a separate body of law and as an independent subject of legal doctrine

415

K. LENAERTSIE. DE SMIJTER The United Nations and the European Union: living apart together

439

K.M. MEESSEN The integrationist paradox case for the introduction of a single European currency

459

Part VII The Protective Function of International Law

467

M.H.ARSANJANIIW.M. REISMANN The quest for an international liability regime for the protection of the global commons

469

M. BOSSUYT United Nations human rights procedures regarding Burundi, Rwanda and Zaire (1994-1997)

493

IX Y.DINSTEIN Diplomatic protection of companies under international law

505

H. GROS ESPIELL The common heritage of mankind and the human genome

519

O. THURER Protection of minorities in general international law and in international humanitarian law

533

H. VAN HOUITE

549

The Property Claims Commission in Bosnia-Herzegovina A new path to restore real estate rights in post-war societies? R.WOLFRUM Liability for environmental damage: a means to enforce environmental standards

565

Part VIII The Law of Armed Conflict

579

M.BOTHE International humanitarian law and War Crimes Tribunals: recent developments and perspectives

581

F. KALSHOVEN Protocol II, the COOH and Colombia

597

T.MERON Contemporary conflicts and minimum humanitarian standards

623

x Part IX

629

The Law of International Criminal Tribunals E.DAVID The International Criminal Court: what is the point?

631

G.HAFNER Limits to the procedural powers of the International Tribunal for the former Yugoslavia

651

T. VAN BOVEN Autonomy and independence of United Nations judicial institutions: A comparative note

679

Part X Peaceful Settlement of Disputes

689

R. HIGGINS The International Court of Justice and human rights

691

S. ROSENNE The Secretary-General of the United Nations and the Advisory Procedure of the International Court of Justice

707

C.H. SCHREUER The interpretation of ICSID arbitration agreements

719

S. TORRES BERNARDEZ The new theory of "Indispensable Parties" under the Statute of the International Court of Justice

737

W. VERWEY The International Court of Justice and the legality of nuclear weapons: some observations

751

XI K. WELLENS

765

The Court's Judgment in the case concerning the Gabcikovo-Nagymaros project (Hungary/Slovakia): some preliminary reflections

Tabula Gratulatoria

801

XIII

PREFACE At the end of the Academic year 1997-1998 Professor Dr. E. Suy will retire as Professor of International Law after having worked for more than thirty years at the Faculty of Law of the K.U. Leuven. Professor Suy occupies a prominent place in international law as both an academic lawyer and as the former Under-Secretary-General and Legal Counsel of the United Nations. The lectures and seminars given by him over the years, with unabated thorough and thought-provoking nature. Many enthusiasm, are still of generations of students from different parts of the world owe to him their lifetime interest in international law. The writings of Professor Suy are well-known and cover an enormous variety of topics in the fields of international law and the law of international organizations. The trademarks of his scholarly work are notoriously high standards, originality in the selection and treatment of issues, and a perfect mixture of theory and practice. A most appropriate way to pay tribute to Professor Suy's meritorious achievements as an outstanding international lawyer is the presentation of a tiber Amicorum on the occasion of his retirement. It is therefore a real honour and pleasure for me to introduce this volume. It was after consultation with the Dean of the Faculty of Law of the K.U. Leuven, Professor Dr. J. Herbots and with his approval that I have taken the initiative for this tiber Amicorum. Not only my being an alumnus of the K.U. Leuven, but moreover being the first graduate to have had the privilege of preparing a PH.D. under the directorship of Professor Suy were decisive factors in this regard. Professor Suy's activities as a teacher, scholar, U.N. Legal Counsel, key-note speaker on many occasions and as a legal advisor to Belgian and foreign governmental authorities led naturally to the sub-divisions of this volume into the following ten parts: international law and international relations (I), Belgium and Flanders within the international legal order (II), sources of international law (III), fundamental concepts of international law (IV), the law of international organizations (V), the law of the European Union (VI), the protective function of international law (VII), the law of armed conflict (VIII), the law of international criminal tribunals (IX), and the peaceful settlement of disputes (X). This collection, as a result of the great diversity of the contributions it contains, attempts to present to the reader the vast panorama of the intellectual pursuits of Eric Suy.

a

XIV

The authors, who are all friends of Eric Suy, have responded with enthusiasm to the invitation which I had the honour to extend to them in April 1996. Their willingness to write a contribution for this volume - in spite of their many other responsibilities and commitments -was warmly welcomed and greatly appreciated by all those taking part in this common endeavour. I am grateful to the authors for the high quality of their contributions, for their unreserved compliance with the Publisher's guidelines and for their cooperative spirit towards the Editor's monitoring. An endeavour of this kind is impossible without an Advisory and Liaison Committee. I am very grateful to its Members - Professor J. Herbots, Professor H. van Houtte and Professor K. Lenaerts - for their continuous support and advice. A crucial role in the actual "making"of this volume was played by two people to whom I am extremely indebted. Miss Karen Hennessy, LL.M. Program Coordinator at the Law Faculty of Leyden University committed herself to a scrupulous correction of the contributions for spelling, grammar and punctuation. Her patient and kind perseverance in fulfilling this seemingly never-ending task, under the increasing pressures of time, were just outstanding. Miss Esther Bax, secretary at the Law Faculty of Nijmegen University, was responsible for the lay-out and finalizing the whole manuscript camera-ready. Her professionalism and dedication in carrying out this vital but demanding task was invaluable to me. Professor Suy, to whom this volume is dedicated, deserves my life-time gratitude because he introduced me to the discipline of international law.

Karel Wellens, Editor

xv

BIOGRAPHY OF ERIC SUY Born in Ghent, 15 August 1933

Legal education and degrees Dr. iur., University of Ghent, 1956 Diploma of the Graduate Institute of International Studies, Geneva, 1957 Docteur es Sciences Politiques (International Studies), University of Geneva, 1962

Academic Career Teaching assistant in Public International Law at the Graduate Institute of International Studies Geneva: 1959-1960 Fellowship at the University of Vienna: 1960-1961 Research fellowship at the National Fund for Scientific Research (NFWO), Belgium: 1961-1963 Associate Lecturer at the KU. Leuven: 1963-1967 Research undertaken for the Belgian-American Educational Foundation at the Universities of Columbia (New York), Dallas and Chicago and the State Department on the protection of foreign investments in developing countries: 1965 Professor of Public International Law, KU. Leuven: 1967-1978 Part-time Professor, KU. Leuven: 1978-1988 Professor of Public International Law, KU. Leuven: 1988Visiting Professor: Universities of Berlin, 1965-1966, and 1968 (course Public International and European Law), Kinshasa, 1968 and 1969 (Public International Law), Bochum, 1972, Groningen (Roling Chair), 1991 Guest lectures at Universities in Europe, Asia, America and Africa

Membership of learned societies Institut de Droit International, International Law Association, Societe francaise pour le droit international, Deutsche Gesellschaft fiir Volkerrecht, Academia Mexicana de derecho internacional. Co-founder of the International Institute of Humanitarian Law at San Remo President of the Belgian Society of International Law

XVI

Publications Ninety studies on public international law and the law of international organizations

International carreerand assignments a. Within the Belgian context Member of the Belgian delegation at the International Conference for the Codification of Diplomatic Law (Vienna 1961) Member of the Belgian Delegation at the International Conference for the Codification of the Law of Treaties (Vienna 1968and 1969) Member of the Belgian Delegation to the General Assembly of the United Nations in 1969,1970,1971,1972and 1991 Chairman of the Sixth (Legal) Committee of the General Assembly of the United Nations in 1972 Member of the Permanent Court of Arbitration (The Hague) since 1973 Member of the Conflict Prevention Center of the Organization for Security and Cooperation in Europe b. Within the U.N. context Under-Secretary-General from 1974to 1987. First as The Legal Counsel in New York (1974-1983) later as Director-General of the European U.N. Office at Geneva (1983-1987) Representative of the Secretary-General at all U.N. Conferences and Committees on matters of public international law Head of the U.N. Observers Group at the Referendum in Panama over the Canal treaties (1977) Special Envoy of the Secretary-General in Chile, on the question of missing persons (1977) Personal Envoy of the Secretary-General at international meetings in Europe and Africa between 1983and 1987 Personal Representative of the Secretary-General for the Kurdish question in Irak (1991)

XVII

Other functions Attache de Cabinet of the Ministers for Foreign Affairs Harmel, Van Elslande and Eyskens Chef de Cabinet of the Minister for External Relations in the Governmental of Flanders (1987-1988) Chairman of the Advisory Council on Humanitarian Law of the Belgian Red Cross (Flemish Community) Counsel and Advocate in various cases before the International Court of Justice Chairman of the Flemish Tourist Association - Flemish Automobile Assocation (VTB-VAB) since 1993 Former Captain-Commander of the Belgian Air Force Honorary Chairman of the Local Heritage Society, Overmere

Honorary Medals and Honours Knight in the Order of the Crown, Officer in the Order of the Crown, Knight in the Order of Leopold, Grand Officer in the Order of Leopold the Second Foreign Honorary Medals: Great Medal for Service, Republic of Austria, Grand Officer, Sovereign and Military Order of Malta, Mexican Order for Law, Culture and Peace Doctorate Honoris Causa, University of Montpellier Honorary Medal of the Marnix Society, 1993

XIX

BIBLIOGRAPHY OFERIC SUY Le Concordat du Reich de 1933 et le Droit des Gens, Temse, De Mayer, 1958, 97 pp. Les actes juridiques unilateraux en droit international public, Paris, Librairie Generale de Droit et de Jurisprudence, 1962,XI,290 pp. Beknopt handboek van het Volkenrecht (met F. Van Goethem), Brussel Antwerpen, Standaard, 1964,297 pp . The Concept of Jus Cogens in International Law, Geneva, Carnegie Endowment, 1967, 17-77. Leerboek van het Volkenrecht, voLl: Staat en Individu, vol. II: Het territoriaal element, Leuven, Acco, 1972- 1973. Internationale Festschrift fiir Alfred Verdross (co-editor), Miinchen-Salzburg, Fink, 1971. Corpus Iuris Gentium, 1st ed. 1992,2nd.ed. 1996,Leuven, Acco. Les golfes et les baies en droit international public, in Die Friedenswarte 54 (1957) 101-116. De nationale rechtsmacht van de Staten in het internationaal recht, in Rechtskundig Weekblad, vol. 22 (1959),2033-2042. Sur la definition du droit des gens, in Revue generale de droit international public, 1960,762-770. Die Zukunft der Internationalen Gerichtsbarkeit, in Archiv des Volkerrechts, 8 (1960),421-425. Het Arrest van het Internationaal Gerechtshof in de Zaak Honduras t. Nicaragua, in Rechtskundig Weekblad, vol. 25 (1961), 721-732. Het Advies van het Internationaal Gerechtshof over de aard van zekere uitgaven van de Verenigde Naties, in Rechtskundig Weekblad, vol. 26 (1962) 921-956. De zaak "De Becker" voor het Europees Hof voor de Mensenrechten, in Rechtskundig Tijdschrift voorr Belgie, 1962, 131-152. De zaak "Lawless" voor het Europees Hof voor de Mensenrechten, in Nederlands Tijdschrift voor Internationaal Recht, 1962,273-294.

xx

La Convention de Vienne sur les relations diplomatiques, in Osterreichische Zeitschrift fiir offentliches Recht, vol. 12 (1962), 86-114. Het individu in de rechtspraak van het Europees Gerechtshof voor de Mensenrechten, in Album Professor Fernand Van Goethem, Leuven 1964, 5982. Legality, Morality and International Law, in 4 World Justice 1963,351-362. De verhouding tussen het gemeenschapsrecht en het intern recht, in [uridische aspecten van de Europese Integratie, Leuven, 1964,59-82. De internationale en de europese aansprakelijkheid van lidstaten van de Europese Gemeenschap, in Belgisch Tijdschrift voor Internationaal Recht, 1965, 141-147. Les rapports entre le droit communautaire et le droit interne des Etats Membres. Cours a l'Universite internationale de sciences comparees, Luxembourg. Heule, UGA, 1965, 51 pp. La primaute du droit international sur le droit interne (met J.J.A.Salmon), in L'adaptation de la Constitution belge aux realites internationales, Brussel, Ed. Inst. de Sociologie, 1966,69-93. Volkenrechtelijke aspecten van de REM-Affaire, Leuven, Acco, 1965,58 pp. L'individu devant la Cour europeenne des droits de l'homme, Internationales Colloquium tiber Menschenrechte, Berlin, 1966, 104-118.

in

Contribution de la jurisprudence internationale recente au developpement du droit des gens, in Belgisch Tijdschrift voor Internationaal Recht 1965, 314-347; 1966,68-93. Immunity of States before Belgian Courts and Tribunals, in 27 Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht (1967),660-692. La 53me session de l'Institut de Droit International (Nice, 7-17 septembre 1967), in Belgisch Tijdschrift voor Internationaal Recht, 1968,325-333. Ten Years of Development in International Law, in World Justice (1969-1970), 42-56. De toelating en uitwijzing van vreemdelingen in internationaal en europees recht, in Belgisch Tijdschrift voor Internationaal Recht, 1970,484-497.

XXI

La paix par le droit international, in La Paix par la Recherche scientifique, Brussel, 1971,795-806. De bescherming van diplomaten, in Belgisch Tijdschrift voor Internationaal Recht, 1971, 795-806. L'Immunite des Etats dans la Jurisprudence belge, in L'Immunite de [uridiction et d 'Execution des Etats, Brussels, Ed. Institut de Sociologie, 1970,281-313. Les beneficiaires de I'immunite de l'Etat, in L'Immunite de Juridiction et d'Execution des Etats, Brussel, Ed. Institut de Sociologie, 1970, 259-269.

Reflexions sur la distinction entre la souverainete et la competence territoriales, in Internationale Festschrift ftir Alfred Verdross, Miinchen-Salzburg, Fink, 1971,493-508. Naar een herziening van het internationaal zeerecht, in Internationale Spectator, vol. 26 (1972),873-888. Universaliteit en Codificatie van het Volkenrecht, in Miscellanea W.]. Ganshof van der Meersch, Brussel, Bruylant, 1972,297-314. Contracten tussen ontwikkelingslanden en vreemde investeerders, in Recht in Beweging. Opstellen aangeboden aan Prof. R. Victor, Antwerpen, Kluwer, 1972, 993-1006. La protection des diplomates, in Multitudo Legum, Ius Unum, Melanges Wilhelm Wengler" Berlin, Berlin-Verlag, 1973, 591-621.

Volkenrechtelijke aspecten van de IBRAMCO-Affaire, in Belgisch Tijdschrift voor Internationaal Recht, 1974, 142-166. International Law-Making in the United Nations: A look at the future, in Proceedings and Committee Reports of the American Branch of the International Law Association, 1975-1976,23-33. The United Nations and the Transnational Corporations, in Bulletin of Comparative Labour Relations, 7, 1976,303-315. The Meaning of Consensus in Multilateral Diplomacy, in Declaration of Principles - A Quest for Universal Peace, Festschrift B.V.A. Roling, Leiden, 1977, 259-274.

XXII

"Internationale Organisaties" als een afzonderlijk studievak in de rechtsfaculteiten, in Liber Amicorum Prof. Orner De Raeymaeker, Leuven, University Press, 1977,83-89. Innovations in International Law-Making Processes, in The International Law and Policy of Human Welfare, (R.St. John Macdonald, D.M.· Johnston, G.L.Morris eds), Alphen a.d .Rijn, Sijthof & Noordhoff, 1978, 187-200. The Status of Observers in International Organizations, in Recueil des Cours de r Academic de Droit International, 1978, II, 79-178. The Settlement of United States Claims against Iran, in Belgian-American Trade Review, New York vol. 36, 1981, nr. 3. Some Legal Questions concerning the Security Council, in StaatsrechtVolkerrecht-Europarecht, Festschrift fiir H.-J. Schlochauer, Berlin-New York, W. de Gruyter, 1981,677-689. Achievements of the United Nations Commission on International Trade Law, in 15 The International Lawyer, 1981, 139-147. Settling US Claims Against Iran Through Arbitration, in 29 The American Journal of Comparative Law, 1981,523-529. Harmonious Settlement of International Conflicts, in Conflict and Harmony, The Andrew R. Cecil Lectures on Moral Values in a Free Society, vol. III, Dallas, 1982,113-132. Rechtsgeschafte, Einseitige, in Lexikon des Rechts, Berlin, Luchterhand, 1982, 2e ed.1991. Droits des traites et droits de l'homme, in Festschrift fiir Hermann Mosler, Volkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte, Berlin-Heidelberg-New York, Springer, 1983,935-947. United Nations Peacekeeping System, in Encyclopedia of Public International Law, vol. 4, North Holland Publishing Company, 1982,258-265. A New International Law for a New World Order, in The Spirit of Uppsala, Berlin-New York, W. de Gruyter, 1984,92-100. Consensus, in Encyclopedia of Public Internatonal Law, vol 7, North Holland Publishing Company, 1985,49-52. Developments in international human rights law, in The Review, International Commission of Jurists, june 1984,44-46.

XXIII

Politisering van gespecializeerde instelIingen, in Werkplaats of Woordenkraam, Den Haag, Clingendael, 1984,21-26. L'Article 25, in La Charte des Nations Unies (T.P.Cot en A.Pellet, ed), ParijsBrussel, Economica, 475-481 (2e uitg. 1992,471-478). Het statuut van het Zuidpoolgebied: nieuwe ontwikkelingen, in Liber Amicorum Elie Van Bogaert, Antwerpen, Kluwer, 1985,253- 260. Kleine Schritte fiir eine bessere Welt, in Vereinte Nationen, vol. 34 (1986), 4-7. OU en sont les relations entre les Nations Unies et les associations internationales privees au seuil de la Quarantaine, in Associations Transnationales, 1986, nr .I, 4-7. Konfliktlosung durch Konsens: die Rolle der Vereinten Nationen, in Revue de droit suisse, vol. 105 (1986),399-409. The Status of Observers in International Law, in Antarctic Challenge II (R. Wolfrum ed.), Berlin, Duncker & Humblot, 1986,263-270. Role et signification du consensus dans I'elaboration du droit international, in International Law at the time of its codification. Essays in honour of Roberto Ago, Milaan, Giuffre, 1987,521-542. Souverainete des Etats et droits humains. Le role du droit international, in Les Cahiers de Droit (Quebec-Montreal), vol. 28 (1987) 523-531. La question de l' Antarctique, in Les regions polaires et les chercheurs suisses. Publications de la Societe Helvetique des Sciences Naturelles, vol. 2, BernStuttgart, 1988,67-74. Recht und Praxis der Amtssitzabkommen. Der Status der PLO-Vertretung als Musterfall und Bewiihrungsprobe, in Vereinte Nationen, 1988,nr. 3, 82-86. La protection des volontaires humanitaires dans les conflits armes npninternationaux et dans les operations de secours en cas de catastophes, in Des Menschen Recht zwischen Freiheit und Verantwortung, Festschrift Kl.Partsch, Berlin, Duncker & Humblot, 1989,173-182. Peace-keeping Operations, in A Handbook on International Organizations (R.J.Dupuy ed.), Dordrecht-Boston-Lancaster, Nijhoff, 1988,379-396. Legal Aspects of Peace-Keeping Operations, in 33 Netherlands International Law Review 1988, 318-320.

XXIV

Strukturwandel der Vereinten Nationen: Prespektiven, Moglichkeiten und Grenzen, in Die Reeform der Vereinten Nationen (R. Wolfrum ed.), Berlin, Duncker & Humblot, 1989, 189-199. De exteme betrekkingen van Gemeenschappen en Gewesten, in Staat, Gemeenschappen en Gewesten. Heervorming van de Instellingen, Brugge, Die Keure, 1989, 129-141. The Unification of the two German States: some international legal aspects, in Newsletter, International Cultural Society of Korea, december 1990, 2-8. International Humanitarian Law and the Security Council Resolutions on the Gulf-crisis, in Humanitarian Law of Armed Conflict. Challenges Ahead. Essays in Honour of Frits Kalshoven, Dordrecht-Boston-London, M. Nijhoff, 1991, 515526. Commentaar: Humanitaire Interventie. Tussen soevereiniteit en mensenrechten, in Transactie, vol. 21 (4),1992,317-322 . The Admission of States to the United Nations: The Case of Korea. Seoul, The Sejong Institute, Seminar Series 91-01 (nr, 30), 23 blz, Is Humanitarian Intervention Part of International Law?, Cursus Academy of International Law, Thessaloniki, 1993. De UNG-resoluties en hun toepassing in Ioegoslavie, in Peacekeeping Operations. Proceedings Colloquium 8-9 feb. 1993. Koninklijk Hoger Instituut voor Defensie 1993, 131-141. Le Conseil de Securite et la frontiere entre l'Iraq et Ie Koweit, in Le droit international dans un monde en mutation. Liber Amicorum Eduardo Jimenez de Arechaga, Montevideo, Fundacion de cultura universitaria, 1994,441-456. Volkenmoord in de kaart gebracht, in De dood in de marge van het leven (E.Moex, A. Opdebeeck, ed .), Onderzoekscentrum Marginaliteit, K.U.Leuven, 1994,23-30. De deelname van Gemeenschappen en Gewesten aan de Verenigde Naties, in Belgisch Tijdschrift voor Internationaal Recht, 1994, 133-145. Internationale Instellingen, in 1994,588-594.

Wegwijs Politiek, Leuven, Davidsfonds,

Internationale Regelgeving, in Wegwijs Politiek, Leuven, Davidsfonds, 1994, 595-600.

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The Development of Supervisory Mechanisms within the CSCE Framework, in Towards More Effective Supervision by International Organizations. Essays in Honour of Henry G. Schermers, vol. I, Dordrecht, Kluwer, 1994,83-92. Humanitarian Intervention and International Law, in Humanitarian Intervention and the Pursuit of Justice (B. Wicker & F. Van Iersel OOs), Kampen, Kok Pharos, 1995,79-84. The Constitutional Character of Constituent Treaties of International Orrganizations and the Hierarchy of Norms, in Recht zwischen Umbruch und Bewahrung. Festschrift fUrRudolf Bernhardt, Berlin, Springer, 1995,267-277. De VN-praktijk op het stuk van het zelfbeschikkingsrecht der volkeren, in Naar een nieuwe interpretatie van het recht of zelfbeschikking, (N. Sybesma-Knol en J. Van Bellingen eds), Brussel, VUBpress, 1995,257-283. Van resoluties tot rules of engagement. Het besluitvormingsproces, in Colloquium 50 jaar Verenigde Naties, Koninklijk Hoger Instituut voor Defensie, october 1995, 24-32. Developpement progressif et codification du droit international: Ie Role de I'Assernblee generale revisite, in Le droit international comme language des relations internatonales. Proceedings of the United Nations Congress on Public International Law, New York, 13-17march 1995. Den Haag, Kluwer, 1996,215223.

International Organization, in 1996/2,237-244.

43 Netherlands International Law Review,

De ontwikkeling van het internationaal recht, in Nieuw Tijdschrift voor Politiek, 1996,nr. 2, 5-12. De procedure voor de benoeming van de Secretaris-Ceneraal, in VVNberichten. Tijdschrift van de Vereniging voor de Verenigde Naties, jrg. 20, nr. 90 (&996-4),4-7. De Veiligheidsraad en Interventie, in Vijftig [aar Verenigde Naties: De volgende vijftig jaar? (M. Dewulf en R. Peeters, eds), Leuven-Apeldoorn, Garant, 31-37. Democracy in International Relations: the Necessity of Checks and Balances, in Y.Dinstein (00), Israel Yearbook on Human Rights, vol. 26,1996,125-136.

XXVI

The Role of the United Nations General Assembly in Fox, H. (ed.), The Changing Constitution of the United Nations, British Institute of International and Comparative Law, London, 1997,pp. 55-69.

XXVII

LIST OF CONTRIBUTORS G.ABI-SAAB

Professor of International Law, Graduate Institute of International Studies, Geneva; Member of the Institute of International Law

A.ALEN

Professor of Constitutional Law, KU. Leuven

C.F. AMERASINGHE

Judge, UN Tribunal; Member of the Institute of International Law; Honorary Professor of Law, University of Colombo, Sri Lanka, 19911994; Sometime Professor of Law, University of Ceylon, Colombo; Director, Secretariat and Executive Secretary, World Bank Tribunal

N.ANGELET

Lecturer in International Law, KU. Leuven

M. ARSANJANI

Senior Legal Officer, Codification Division, Office of Legal Affairs, UN

R. BLANPAIN

Professor of Labour Law, KU. Leuven

M. BOSSUYT

Professor at the University of Antwerp (VIA); Member of the UN Sub-Commission of Prevention of Discrimination and Protection of Minorities; Former Chairman of the UN Commission on human rights; Honorary Commissioner for Refugees and Stateless Persons; Judge at the Court of Arbitration (the Belgian Constitutional Court)

M. BOTHE

Professor of Public Law, Johann Wolfgang Goethe University, Frankfurt am Main

B. BOUTROS-GHALI

Formerly Secretary-General of the UN; Member of the Institute of International Law

H.CORELL

Under-Secretary-General for Legal Affairs, The Legal Counsel, UN

XXVIII

E. DAVID

Professor of International Law/ Free University of Brussels

E. DE SMIJTER

Assistant at the Institute for European Law/ KU. Leuven

Y. DINSTEIN

Professor of International Law and President of Tel Aviv University (Israel); Member of the Institute of International Law

R.DORMOY

Professor of International Law/ University of Paris-Sud (XI)/ Jean Monnet Chair; Director of CECA 92; Director of the DEA of International and European Law

M.EYSKENS

Formerly Prime Minister and Foreign Minister of Belgium; Member of Parliament; Professor of Public Economics, KU. Leuven

R.FOQUE

Professor of Legal Philosophy at the Law Faculties of the KU. Leuven and the Erasmus University of Rotterdam

B. GRAEFRATH

Emeritus Professor of International Law, Berlin

H. GROS ESPIELL

Formerly Ambassador of Uruguay, Paris; Associate Member of the Institute of International Law

G.HAFNER

Professor of International Law, University of Vienna

R. HIGGINS

Judge at the International Court of Justice; Member of the Institute of International Law

F. KALSHOVEN

Emeritus Professor of University of Leyden

H.F.KOCK

Professor of Law; Dean of the Law Faculty of the Johannes Kepler University, Linz; Deputy Head of the Institute of Public International Law and International Relations and of the Institute of European Law; Co-Director of the Advanced University Studies in European Law

International

Law,

XXIX

P. KOOIJMANS

Judge at the International Court of Justice Associate Member of the Institute of International Law

W.LANG

Austrian Ambassador, Brussels

K. LENAERTS

Professor of European Law, K.U. Leuven; Judge at the Court of First Instance of the European Communities, Luxembourg

R. SlJ. MACDONALD

Judge at the European Court of Human Rights, Professor of International Law, Dalhousie Law School, Halifax, Canada; Member of the Institute of International Law

K.MEESSEN

Jean Monnet Professor of Public Law, European Law, Public International Law and International Economic Law, Friedrich Schiller University, [ena, Germany

T.MERON

Charles 1. Denison Professor of Law, New York University

R. MULLERSON

Professor of International Law, King's College, London; Associate Member of the Institute of International Law

P.PEETERS

Professor of Constitutional Law, K.U. Leuven

M.REISMANN

Wesley N. Hohfeld Professor of Jurisprudence, Yale Law School

W.REMANS

Head of the Department of International Affairs, Red Cross Flanders

L.REYCHLER

Professor of Leuven

S.ROSENNE

Member of the Institute of International Law, formerly Member of the International Law Commission (1962-1971) and of the Commission on Human Rights (1968-1970), Honorary President, Israel Branch of the International Law Association; Honorary Member of the American Society of International Law

International

Relations,

K.U.

xxx

E. ROUCOUNAS

Professor of International Law, Athens University; Member of the Institute of International Law; Member of the Academy of Athens

C. SCHREUER

Professor of Law, Department of International Law, University of Salzburg, Edward B. Burling Professor of International Law and Organization, Johns Hopkins University, Washington

I. SEIDL-HOHENVELDERN

Emeritus Professor of International Law, University of Vienna; Member of the Institute of International Law

K. SKUBISZEWSKI

President of the Iran-United States Claims Tribunal; Member of the Institute of International Law

N. SYBESMA-KNOL

Emeritus Professor of the Law of International Organizations, former Director of the Centre for the Study of the Law of the United Nations and the Specialized Agencies, Free University of Brussels

D. THURER

Professor of Public International Law, European Law, Constitutional and Administrative Law at the University of Zurich; Member of the International Committee of the Red Cross; Alternate Judge at the OSCE Court of Conciliation and Arbitration; Member of the Constitutional Court of the Principality of Liechtenstein; Member of the International Commission of Jurists

C. TOMUSCHAT

Professor of Constitutional and International Law, Humboldt University of Berlin; former Member of the Human Rights Committee under the International Covenant on Civil and Political Rights (1977-1986) and the UN International Law Commission (1985-1996)

S. TORRES BERNA.RDEZ

Formerly Registrar of the International Court of [ustice: Member of the Institute of International Law

XXXI

T. VAN BOVEN

Professor of International Law, University of . Maastricht

L. VAN DEN BRANDE

Minister-President of the Flanders

H. V AN HOUTTE

Professor of Private International Law, International Business Law and Arbitration, K.U. Leuven; Member of the Property Claims Commission and its Chairman for Legal Issues

J. VERHOEVEN

Professor of International Law, Catholic University of Leuven; Member of the Institute of International Law

W.VERWEY

Professor of International Law, University of Groningen

K. WELLENS

Professor of International Law and the Law of International Organizations, Catholic University of Nijmegen

R.WOLFRUM

Director Max-Planck-Institute for Foreign, Public and International Law, Heidelberg

K.ZEMANEK

Professor of International Law, University of Vienna; Member of the Institute of International Law

Government

of

PART I

INTERNATIONAL LAW AND INTERNATIONAL RELATIONS

SOUTH ASIAN ANTECEDENTS OF INTERNATIONAL LAW C.F. Amerasinghe

I first met Eric Suy when we were both young academics in the 19605. Some thirty or more years later we are both of retirement age. Our meeting took place at a conference in Greece at which Professor Suy read a stimulating paper on ius cogens. It is appropriate, therefore, that I choose to address some of the perennial and pervasive values in international law which were reflected in the South Asian cultures (those of the Indian subcontinent, including Sri Lanka and the Maldives and perhaps Burma) before the western post-Renaissance influences touched them. Professor Suy was Legal Counsel of the U.N. This is another reason why he would be interested in the subject of this short essay, as an international lawyer who has concerned himself with the interaction of cultures in international law. Not much work has been done in this area. There is also a scarcity of evidence. However, we are indebted to Judge Nagendra Singh! and Professor C. Chacko', principally' for some valuable seminal work done on the subject . What will be discussed here is the situation prevalent principally in preChristian India, but not later than the arrival of Islam in the "r' century A.D. The emergence of law in any form in international relations in the West is to be traced to the world of the Greek polis (city state), i.e. about 600 or 700 B.C. when there is evidence of treaty-making, diplomatic missions, amphyctionies and symmachies (groups of alliances) - and wars. But prior to that there was a varied international life among several kingdoms in Egypt and the Near East (not strictly the "West" ). This included treaties of friendship and dealings on the basis of equality. There is evidence that long before Manu's Code (the Manava Dharmasastra) which is dated at about 200 B.c., even in the Vedic period (4000 to 1000 B.c.) there were in existence in South Asia separate political units sufficiently independent of each other and each possessing organs capable of conducting intercourse with the others. They were sufficiently numerous to engender the growth of a law among them in their relations with each other and to become subjects of inter-state regulation, though these political entities may have been tribal rather than complex in character. Clearly, at least wars were waged and peace was concluded and there was an embryonic law that governed both war and the conclusion of peace. It is, however, from the fifth century B.c. onwards that we find a rather sophisticated development of principles. The developments of the Vedic period and later down to about 300 B.C. were reflected in Kautilya's Arthasastra. Much of what appeared in this 3 K. Wellens (ed.)./ntel7liltional Law: Theory and Practice. 3--9. © 1998 Kluwer Law lntemational . Printed in the Netherlands.

4

work was of practical value and influenced the international relations of the region thereafter. There were different kinds of state entities in the South Asian world, such as republics, oligarchies, kingdoms, etc. There were also the Greek states that had sprung up about 326 B.c. in the north-western region and continued to have contacts with the Indian states. All the Indian states (those of Aryavarta) and these Greek states became proper subjects of inter-state law, thus giving rise to an essential but rudimentary concept of international personality, such as prevailed also in the Greek world of the Mediterranean area. This recognition of personality, stemming from the existence of political units which had both separate territorial autonomy and a representative for purpose of intercourse among states in the forms of governmental machinery, led to the development of rules to govern inter-state relations. In a sense it was the existence of a society of states predicated on mutual intercourse that made inter-state law a requirement. A feature of the inter-state laws of South Asia from pre-Christian times through the middle ages and even when Muslim rule took root was that it was universal. No distinctions were made on the basis of religion or culture as was done in the law of war and peace of Islam or even by Christian states at a certain stage. The law between states was never subject to prejudices which limited is application to one civilization. No distinction between believers and non-believers was recognized in the law applicable to inter-state conduct. "Even when the former were involved in a death struggle of war with the latter, whether the war was fought within or without Aryavarta or whether it was a just and righteous war (Dharma Yuddha) or an unjust war (Adharma Yuddha), it was the sacred laws of Dharmasastra that expressly enjoined all belligerents at all times and in all circumstances to adhere to the accepted rules of warfare. This universality of application which is a distinct Indian contribution to the development of interstate law dates back two thousand years. It was perhaps the outcome of universalism of thought and it gave birth to several basic principles of international Iaw.:" In the code of Manu (about 200 B.c.), there are chapters devoted to the laws of war and diplomatic immunity of envoys . In a sense the subcontinent remained the central pivot of a developing civilization for the entire region of South and South-East Asia in the period preceding the Middle Ages. The unprecedented interplay of civilizations, religions and ideologists which South and South-East Asia witnessed during the centuries that followed has enriched the heritage of the region and through the cooperation of diverse ethnic elements and cultures its peoples have striven to realize, especially in the international arena, timeless, absolute values in their own peculiar way. The civilization of that time in South Asia went through a unique process of

5

evolution of legal precepts and the history of the region illustrates the characteristic of universality so necessary for the development of international law concepts as they have evolved today. If the conditions necessary for the origin and development of international law are examined it, will be found that, first, there must be the existence of separate political units, which must be independent of each other and have an appropriate organ for conducting external relations. On another plane are the basic conditions of respect for law and due observance of agreements solemnly entered into without which no inter-state relationships, however extensive or intensive, could give birth to a law of nations as such. In the subcontinent, these conditions did exist, and the concept of regulation of inter-state relations was established several centuries before the Christian era. As early as the Vedic period there were in existence separate political units sufficiently independent of each other, each possessing an organ capable of conducting intercourse with the others; and such units existed in sufficient numbers to foster the growth of inter-state law by becoming proper subjects of inter-state regulation. The subjects of inter-state law in ancient South Asia were political entities varying not only in their internal structure but also in regard to the exercise of internal sovereignty. In the law of war in particular, not only was there a high degree of development but there was universality of application. South Asia in antiquity had a fairly developed system of law and rules of war based on considerations of humanity and chivalry. The Code of Manu prescribed general rules of warfare which recognized humanity and chivalry as important and , for instance, made a clear distinction between combatants and non-combatants who had absolute immunity from attack. According to Manusmrti, VII, 91 and 92, anyone who surrenders or is without arms or is sleeping or is naked or with hair untied [unprepared] or is an onlooker must never be killed, regardless of whether he is a believer or an alien non-believer or whether he was fighting a just war or not. There are two examples of the application of the law of war in the epics and histories of the early ages. In the Ramayana (Yuddha Kanda Sloka 39), an epic which had a considerable influence in the entire region covering both Indonesia and Thailand, Lakshmana in the war against Ravana, the demon King of Lanka, was forbidden by Raina, the King of Ayodhya (north India), to use a weapon of war which would destroy the entire race of the enemy including those who did not bear arms. Such destruction en masse was legally forbidden, even though Ravana was fighting an unjust war with an unrighteous objective and was considered a devil-demon who for that reason, was an outlaw. In the Mahabharata, Arjuna observing the laws of war, refrained from using a hyperdestructive weapon. Because war was restricted to ordinary or normal weapons the use of extraordinary or unconventional types was not permitted. (Udyog

6

Parva. 194.12). There are other examples of customary law governing inter-state relations which prescribed on the basis of the principles of chivalry rules relating to the administration of occupied territory belonging to the enemy and treatment of the defeated enemy king. The Code of Manu (Manusmrti VII, 201) states: "When a king has conquered a foreign foe he shall make the king there, a prince of that country (not of his own) and he shall not destroy the royal race of his foe unless that royal race be of ignoble birth. He is to honour the gods and the customs of the conquered country and grant exemption from taxation for a time" . There is evidence that even Alexander in the early 4th century B.c. in his wars with Indian kings applied, when he defeated them, the laws recognized by the customs of India in the Smriis? There also existed the institution of ambassadors. As has been stated: "The contacts of ancient India with States or political entities possessing a different civilization were many and well-established. The institution of Rajduts, i.e. the sending of ambassadors or enjoys for ad hoc work or for short sojourns in the courts of other States even if the modem concept of permanent embassies was not known then ......, was not confined to States of the Indian group but extended to the Greek states that had come into existence on the north-west border of India in the wake of Alexander's invasion. The earliest concept of Rajdut is found in the epic Ramayana when the envoy of the King of Ayodhya claimed immunity from arrest in the Court of Ravana, the King of Lanka. While both Christendom and Islam confined official inter-State relations within their sphere of belief and no instances of importance have come to light indicating exchange of ambassadors with countries outside their civilization, India had not only accredited such ambassadors to foreign countries but received foreign envoys to Indian courts, as evidenced by Megasthenes who came to the court of Chandragupta Maurya in 303 B.C., representing the kingdom of Seleukos Nikator. There is also evidence of the exchange of ambassadors between India and Rome in the early centuries of the Christian era; according to Gentili in De Jure Belli "ambassadors from India come to Rome". The Roman historian Strabo confirms that an Indian mission came to Augustus Caesar in 20 B.c. with the aim of promoting commercial relations. This mission may have been sent by one of the Pandya Kings (Strabo XV Chapter IV, T3). It is also well known that Emperor Asoka (274 to 237 B.C.) sent envoys to Egypt, Syria, Macedonia and Ceylon to further the cause of peace and non-violence as preached by Buddha, whose teachings he had embraced ."

7

There is evidence that Emperor Asoka propounded in his 14 rock-edicts as early as 250 B.C. the principle of peaceful co-existence. Particularly, after the Kalinga war in 261 B.C., being horrified by the bloodshed, he decided to abandon the use of force in inter-state relations and proclaimed a universal peace. He made it quite clear that taking by force what belonged to others was not acceptable and that all should enjoy peace of mind by co-existence and not by mutual interference.' A further distinguishing characteristic of the legal system of the ancient subcontinent was its recognition of the supremacy of law and the sanctity of treaties, which constitute the two basic principles indispensable for the growth of law among states . The concept of dharma or law accompanied by danda or sanction existed at the origin of the state and society. Danda, which inits crude conception is the basis of the theory of force, is admitted only in terms of the legal concept of dharma implying a link with the moral order not merely of human society but of the entire universe. Thus naked force no longer remains the last resort of kings but force is a weapon for the implementation of dharma or law, particularly against unlawful force. Thus Manu's equation of danda with dharma means the supremacy of dharma or law which has the highest sanction of danda behind it. The king and the entire political order under him had to serve dharma and bow to law at all times. Danda divorced from dharma could not be a weapon in the hand of the king: dharma alone was sovereign in both political and legal theory . In the case of conflict between Arthasastra (the rules of political and economic organization) and Dharmasastra (the principle of law), the latter was to prevail over the former . As was asserted by the political scientist, Kautilya, in his Arthasastra, III, 1: "[I]n any matter where there is conflict between Dharmasastra and practice or between Dharmasastra and any secular transaction, the king should decide the matter by relying on dharma (law) alone." As differences have generally to be settled, whether or not by peaceful methods such as negotiations, they often end in some sort of agreement. It is of the essence of law that such agreements duly reached between states, on the basis of accord or friendship or even after war, should be respected. There is an abundance of authority which attached the highest importance to the maintenance of agreements reached either in writing or by word of mouth. Kautilya asserts that "peace depending upon honesty or oath is immutable both in this and the next world" and he goes a step further, discarding the principle of obtaining hostages as a security to cement the binding nature of treaties, when he remarks, "it is for this world only that security or a hostage is required for strengthening the agreement"," The law thus prescribed the hightest sanctity

8

for verbal or written agreements between two political units. "Treaties bound rulers in mutual faith" (Kautilya), However, a treaty could be repudiated if the conditions and circumstances under which it was signed had radically changed. Kautilya gives an example that if a smaller power was subjected by a bigger one and subsequently the circumstances so altered that the position was reversed, it would then be possible for the former to repudiate the old treaty which no longer held valid. This could possibly be interpreted as a clausula rebus sic stantibus (which is part of modem treaty law) in very rudimentary form. The institution of hostages was indeed common to provide the sanction for the observance of treaties. Thus, when Alexander the Great defeated the tribes of the Malavas and Kshudrakas and the latter entered into a peace treaty with him, no less than 1,000 hostages were sent by the tribesmen to the Greek camp. However, Kautilya was against this practice in theory at least, since he observed that the security of hostages was required for this world only in order to strengthen the agreement. It would seem that the security of hostages was in fact not such an essential feature of a treaty so as to render it invalid in the absence of such a security. There were other concepts of inter-state law known, such as self-preservation and just war, independence and sovereignty, jurisdiction, legal equality and justifiable intervention (the case of a rogue prince). As for sources of the law (see Article 38 of the statute of the ICJ), the main sources of the law at that time regulating the intercourse between states were the Srutis and Smrtis, the two well-known sources of law, the written and customary law, the Srutis (Vedic literature) constituted the most ancient source . The Smrtis constituted a very important source as they provided what may be regarded as the texts of customary law for the regulation of inter-state conduct. They were based on tradition and include the Code of Manu. The Code of Manu was accepted by ancient writers as the highest authority. As far as inter-state law is concerned, it contains the most valuable evidence of convention or written law which existed in South Ayodhya (North India). There were commentaries on the Smrtis. Developments in India which led to a fuller acceptance of law in international relations took place at about the same time that Greece enjoyed its golden age and the Roman empire was flourishing. The system that prevailed did not have the sophistication and maturity of the modem system of international law nor did it linearly spawn the modem system of international law. However, it does show that there was as much respect for law and order in inter-state relations as there was in Greece and Rome at the same time. Clearly, there was no law of human rights, for example. Torture and degrading or inhuman treatment were probably rampant and recognized as a valid instrument of politics. But was there a law of human rights, as we know it, in ancient Rome or Greece or even later? There may not have been a law of human

9

rights in India but there was recognition of a humanitarian law in the law of warfare. For that stage in development of inter-state law the South Asian subcontinent had a recognized system of law. What prevailed there is adequately comparable to what had come to exist in the Mediterranean civilizations of the era, which, after all, were the forerunners in terms of legal values of the modem international society. While modem international law owes its origin to western European traditions and civilizations, it is also true that certainly in Ancient India there was an international law which was comparable to what had evolved in southern Europe at the time of the Greek and Roman civilizations. Notes:

See Singh, N. (1969) India and International Lau: and some of his other papers. Also Chacko, C], and Singh, N., International Law in India, Indian IlL, vol. 1 (1960-61) 184-92,589-98, vol. 2 (l962) 48-64, 6582,143-163,318-366, vol. 3 (1963) 48-64. 2 Chacko, C.l., India 's Contribution to the Field of International Law Concepts, (1958-1), Hague Recueil, vol. 93, 117-221,and articles cited in note 1 above. 3 See, interalia, Alexandrowicz, C.H., (1967), An Introduction to theHistory of the_Ulw of Nations in theEast

Indies.

4

5 6 7 8

Singh, N., (1984), History of the Law of Nations: South and South -East Asia in Bernhardt, R. (ed.), Encyciopedia of Public International Lat», vol. 7 at p. 239. See, interalia, Singh, N., ibid. at p. 240. Singh, N., ibid. p. 241. In 1954 Prime Minister Nehru referred to Asoka's views when he put forward the Panch Sheel (five basic principles for co-existence) which are now reflected in UN GA Rs 2625 (XXV) of October 24, 1970. Arthasastra (Shama Sastri's translation), p. 381.

PARTICULARISM VERSUS UNIVERSALISM Mark Eyskens Professor Eric Suy is an exceptional and therefore rare person. He is an "eximius vir", as the rector of the Catholic University of Leuven is wont to say when reading out the document with which the university confers an honorary doctorate on a deserving scholar. In the person of Professor Suy is combined a reaction of that rare chemistry of reflection and action, thinking and doing, a mixture of intellect and character with a remarkably high energetic capacity. I had the privilege, as Foreign Minister, in the years of the collapse of Communism, the Gulf War, the negotiations of the Maastricht Treaty and the advancing disintegration of Central Africa, to call on Professor Eric Suy's advice. Each time I was impressed by his sharp analysis of complex international political situations. To this end, he naturally relied on his scholarly research of long standing and on the inexhaustible list of cases from international public law with which he is familiar. He also delved into his unparalleled first-hand knowledge of the practice of international law and his experience in how major international institutions work. Needless to say, his long-term assignment as Adjunct Secretary General of the United Nations has been of decisive importance. Indeed, Eric Suy managed to forge knowledge, understanding, insight, experience, feel and above all wisdom into an instrument for conceiving, formulating, supervising and implementing policy. I am delighted to pay to him with a reflection on one aspect of an area of tension that affects the closing of the twentieth century: the tension between particularism and universalism. I shall also attempt to make a contribution, via economic theory, to the definition of possibilities and limitations of promoting national interests at a time of internationalisation and globalisation.l I. From Sarajevo to Sarajevo

The twentieth century is characterised by successive breakdowns of structures, unparalleled in number and intensity. The recent past has witnessed, rather unexpectedly, the implosion of communism, the explosion of the Soviet Union, the end of the Cold War, the rise of fundamentalism, the expansion of the progressive integration of Europe, the toppling of scales of values, and the disintegration of the third world . All this has occurred and is still unfolding against the background of widespread technological innovations which, with the emergence of the information society, are conferring coherence to social, economic and political events. The pressure exerted on citizens to adjust at the end of the century is enormous and leads to efforts and defensive reactions which sometimes give the impression that history is repeating itself. 11 K. Wellen.r (ed.).lntenwtional Law: Theory and Practice. 11-23 . @ 1998 KIlIWu Law Intmralional. Printed in the Netherlands.

12

It is commonly held that the 20th century commenced in 1914, and more specifically on June 28th of that year in Sarajevo, when the terrorist Gavrilo Princip fired the fatal pistol shot that would cut down archduke FransFerdinand of Austria. Less banal is the observation that the 20th century is characterised by an unprecedented acceleration of mega events - the gasp of history -- and by unremitting change upon change. By a brutally grim irony of history, some 80 years after the pistol shot of Sarajevo, thousands of people were killed by machine-gun and artillery fire in the very same city. The entire Balkans seem again poised, as one hundred years ago, for nationalistic volcanic eruptions. The Dayton agreements and the fragile peace have prevented the worst, but appear as a thin and vulnerable cover stretched by men of good will over a persistently explosive situation. Does this mean that the 20th century has, to a certain extent, been but a parenthesis and that the only lesson to be drawn from history is that mankind never learns the lessons of history? Such a thesis is undoubtedly too simplistic to be true. One clear, ponderous trend can be detected in every respect from the mega historical momentum of the outgoing century. The first half of the century was characterised by a nationalistic protuberance, which reached its high point with fascism and nazism. The second half had to reckon with the universalist ambition of Marxist collectivism. Both totalitarian experiments have taken a colossally high human and moral toll on successive generations. Fascism and nazism were defeated in the bloodiest of all wars. Communism died of exhaustion after a long, very hard, and gruesome Cold War. Hitlerism and Stalinism have probably cost 100 million human lives. The balance is abysmal and atrocious. Europe has hopefully rid itself of totalitarian temptations once and for all, though this hope is no longer confirmed by the facts. When the most important events of this century are arrayed, the root of universalism and particularism, of internationalism and nationalism, of the strife for unity and the struggle for one's own identity, of abstract, large-scale exercise of power and private participation in decision-making, of rationalism and intuition, is made clearly evident. . The non-exhaustive enumeration of trends and events illustrates the dialectic of universalism and particularism. The First World War originated in the rivalry between the nation states, and especially the contra position between German and French nationalism. The Leninist October Revolution in Russia was an attempt to build a universalist and rationalist social model. The establishment of the League of Nations was the materialisation of a universalist idea, which was run aground however by the nationalistic reflexes of the member states. The great depression of the thirties was also the crisis of the universal market system, aggravated by the nationalistic and protectionist attitude of most countries. Fascism and nazism were and are the products of a populist and irrational resistance to the crisis of international capitalism, to an intellectual elite, a

13

certain universalist modernism in art, international co-operation and cosmopolitanism, etc. The post-war period was characterised by a revival of rational universalism, the establishment of the United Nations and numerous forms of international co-operation, including in Europe (ECSC, EC, EU, NATO). The Cold War was not a nationalistic conflict, but a dramatic life and death struggle between two types of rationalistic universalism: communism, with its social feasibility ideology and utopian expectations on the one part, and the democratic, liberal, socially corrected capitalism with its striking improvement of prosperity on the other. The seizure of power by the Maoist communists in China tolled the defeat of the nationalism of Chiang Kai-sheck and established a government which, initially at least, aspired to building a universal model for the entire third world. The European unification process, which is endeavouring to institutionalise the rationality of the market economy and to establish a European sovereignty, is favouring harmonised unity at the cost of diversity for reasons of efficiency and economic progress. It is only since the Maastricht Treaty and the introduction of the principle of subsidiarity that great attention has been focused on the desirability of lower, usually national, decision-making levels. In the meantime, the technocratic rationalism of the EU has run into opposition and objections from nationalistic and protectionist segments of public opinion in the member states . The globalisation of the economy and the multinationalisation of large corporations is the result of universalising gravitational forces, abetted by the rationality of the post-industrial revolution (PIR) of the recent decade which needs big markets to recover the enormous research costs and investments. PIR itself is the product of the abstract, rational thinking based on the belief in a universal determinism on which scientific laws are founded. The protest movement of 1968 attempted to replace quantitative thinking the economic growth ideology of the consumer society - with forms of qualitative thinking and a different rationality. The social analysis carried out by the protesters was in no way particularistic, however. On the contrary, the protest advanced the general validity of its criticism and insights. The same applies to the ecological movement, which is a fortiori very international because of the cross-boundary character of the environment issue. The arrival of Islamic fundamentalism is of a totally different nature. This phenomenon rejects the universalising cultural imperialism of the West, or what is considered as such. Whence the negative and isolationist stance against Western democracy, the Western consumer society, Western rationalism, and Western "immorality." Frustrations and inferiority complexes are vented by a complete surrender to Islam - which actually means "submission." In this surrender, the Muslim discovers a protected reaffirmation of identity which is expressed in a sort of religious nationalism. The implosion of communism is the failure of and the break with a certain type of universalising rationalism. Karl Marx, the founder of scientific

14

socialism, was actually tributary to Hegel, the great rationalist philosopher of the Enlightenment, whose dialectical notion of history exerted great influence on Marx. For its part, Marxist materialism is an inversion of Hegelian idealism. This is how Marxism, with its historical materialism and determinism, became the prototype of European hyper-rationalism. It finds inspiration, albeit implicitly, in Newton's paradigm and his mechanical notion of the world, humanity and society, which are considered as being "feasible." The disintegration of the Soviet Union - the result of the collapse of the communist regime - is a reckoning with the so-called democratic centralism. Particularist nationalism is then given free rein (cfr. Chechnya). The former Soviet Union broke up into twelve independent republics outside the territory of Russia, which is a federation with 88 regions and ethnic minorities. The question of nationalities calls for solutions which are at odds with the continuation of multicultural, multi-religious, multi-racial and internationally co-operating societies. Only South Africa is rowing against the tide of ethnocentrism and the Oslo Accords have raised fragile hopes in the Middle East. But from former Yugoslavia, especially Bosnia, to Georgia, Armenia, Azerbaijan, Tajikistan, Yemen, Somalia, Sudan, Rwanda and Burundi, the new Congo, Sierra Leonejust to mention a few places - ethnic violence and bloody intolerance reign triumphant in a climate of extreme irrationality. The 20th century has been a struggle between nationalism and co-operatism, between protective erection of borders and the generous dismantling thereof, between universalism and particularism, between internationalism and tribalism, between multinationalisation and anchoring, between free trade and protection of one's home markets, between world citizenship and individuality. Such concepts, and the reality that they connote, are not necessarily contradictory or irreconcilable. But they can be, as the closing century has shown with so much blood and tears. II. Nation and State

At the end of the twentieth century, an unmistakable nationalistic revival has taken place, often referred to as nee-nationalism. Before delving into this phenomenon, the concept of nationalism must be placed in its proper context. Political scientists usually define nationalism as the political strife aimed at equating (concurring) nation with state. History has numerous examples of societies which, characterised by more or less homogeneous linguistic, cultural or religious traits, have exerted great efforts to form a sovereign state. Conversely, it is also conceivable that an existing state with a heterogeneous composition, for example in terms of language and religion, evolves towards internal nationhood. The latter phenomenon has occurred in Switzerland among other places.

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A. From Nation to Nationalism In Europe, national consciousness and nationalism have grown gradually with the emergence of the modem, centralised countries governed by absolute monarchs from the 16th century on. The French Revolution (1789) gave nationhood a new, universalist and rationalist dimension. Once monarchical absolutism had been overthrown, the nation became the vector of the sovereign people and of the rights and liberties of its citizens. The Declaration of the Rights ofMan andCitizen had a universal scope and was used to found every modem, liberal state. The young ·American republic with Thomas Jefferson thought precisely in these terms. The French concept of the nation has a political and moral dimension which puts the characteristics of language, race and culture clearly in the shade or even represses them altogether. Something completely different was the romantic nationalism of the German variety, embodied by the Sturm und Drang movement and the doctrine of the Volksgeist, propagated by, among others, Johann Gotfried Herder. Belonging to a nation was no longer a question of a free, rational choice, but rather a question of solidarity determined by birth. In the universalist notion, an individual is first a member of mankind, and subsidiarily of the nation state. In the German conception, the nation takes priority over all other possible forms of solidarity. The nation thus became the affirmation of individuality, the characteristic traits, the specific qualities, the difference from others, of the particular nature and inequality of nations. It is that instinctive nationalism of the 19th century, projected as an extension of individual self defence and assertiveness, that led to German and Italian unification. The Franco-German war of 1870 can be interpreted as the confrontation between two different types of nationalism. The First World War carried this confrontation to one of the bloodiest paroxysms. The unwieldy Treaty of Versailles activated German nationalism by imposing humiliating and economically counter-productive condition on the defeated German empire. What followed afterwards, in Italy with Mussolini and with Hitler in Germany, was the degeneration of populist nationalism into extreme intolerance and aggressiveness. B. Neo-nationalism

By way of a backlash to the tragedy of the Second World War, very strong emphasis in the post-war period was laid on international co-operation, universal respect for human rights, and far-reaching forms of economic, political and cultural co-operation. The Charter of the United Nations and above all the UN Declaration of Human Rights of 1948 bear clear traces of this trend. Unlike the League of Nations which in the pre-war period had emphasised the principle of nationalities and the rights of nations, the UN underscored the rights of individuals first and foremost. It should be added here that, under the impetus of the United States (among others), the United Nations supported intensely the independence movement in the colonies, on the principle of the

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right of nations to self-determination. In the Charter of Paris, signed in the French capital in 1990 by the member states of the Conference on Security and Co-operation in Europe (CSCE; now OSCE), it was nevertheless made clear in regard to the nationality question that already threatened to destabilise a number of countries of the former communist bloc, that self-determination did not necessarily have to lead to statehood. The international community also declared that it would never recognise changes of border brought about by force or the threat of force. The dramatic developments in Yugoslavia however were not such as to uphold the credibility of these principles. The nationalistic flare-ups of recent years have various causes. In the countries of the former communist sphere of influence, it is essentially a vehement, often violent reaction, after years of pressure from Moscow, on the part of everyone striving for autonomy. After the downfall of the communist regime, the authoritarian Russification policy pursued by Moscow in many sub-republics of the former Soviet Union has given rise to rejection phenomena geared to the restoration of ethnic homogeneity. A deeper cause must be sought for the emergence of the post-ideological era. The collapse of the communist ideology has left a vacuum that is easily filled by stressing national individuality. Politicians are trying to strike populist coinage from this sentiment, which can lead to explosive situations. In many countries of the third world things are getting out of hand, with a murderous ethnic escalation emerging now that the rivalry between East and West no longer puts a damper on things. Somalia, Rwanda, Angola, Sudan are but the recent gruesome examples . But in the Western world too, the collapse of communism and the removal of the image of the enemy, have weakened the solidarity and co-operation between countries. Self-interest and national interest are beginning to prevail once again. This was amply demonstrated at the negotiations on and the approval of the Maastricht Treaty in 1992 and the arduous hammering out of the Amsterdam Treaty in June 1997. The larger EU member states are showing signs of nostalgia for the nationstate which is threatened to them get into hot water. This was and is in particular the position of the supporters of Gaullism and Thatcherism and their followers, who seem not to notice the daily erosion of a piece of national sovereignty. But defensive stances are also assumed in the smaller member states, which not seldom put up protectionist resistance against the import of products, foreign competition, foreign investors and corporations which take over domestic companies, and against the spread of foreign languages. In Western Europe, immigration above all has given rise to nationalistic ourpeople-first reactions, xenophobia and racism. There is an interplay between immigration and nationalism. The influx of foreign nationals activates the attitude that one's own people deserve preferential treatment and that foreigners must be expelled. For its part, the nationalistic reflex elevates the problem of immigration to a priority social issue. But the resurgence of nationalism in the Western world likewise has a deeper reason. The modem European rationality is eliciting a post-modem

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reaction, which expresses anxiety for grand dreams for the future and is sceptical about the ideology of progress. Internationalism and cosmopolitanism are considered as the privileges of an elite elevated above the national law. A policy with a human face, closer to the people, less technocratic, which deals with the "daily problems" is desired more and more. Under this desire for security, cocooning -- which is not reprehensible in itself -- lurks a social energy, which can easily be bent into nationalism. The slogan of the 1968 protest movement "The world is our village" is nowadays less credible among many than the opposite adage: "Our village is theworld. " C. Patriotism and Nationalism

Seen as the striving of a nation or of a people for socio-economic and cultural elevation, nationalism can be valuable and respectable. It then tends to be a sort of modem synonym for patriotism. On a smaller scale, the same positive assessment applies to the promotion of well understood family interests . History however shows frequent degenerative phenomena that can be ascribed to group selfishness and the making of the nation's interests absolute. An ethical assessment is of the utmost importance here. One maxim worthy of advancement is that nation promotion and nation development may not be pursued at the expense of other peoples or groups of people. In this connection, an approach from economic theory can be invoked , derived from Vilfredo Pareto's principle of optimality. This principle states that the social optimum is not reached as long as the welfare of one person, more realistically of one group, can be improved without worsening that of the others. The market economy, through barter, is a system that extends to such social improvement. Put differently, it should be possible to demonstrate that nation promotion must not become a zero-sum game, i.e. the development of one people in many areas must not be carried out at the expense of other peoples . In Belgium, for example, it is sometimes misconstrued that the economic expansion of one of the regions is achieved to the detriment of the other or the others. For years, this was the view of Wallonia in regard to economic success in Flanders. Nowadays, the Flemings are all too quick to surmise that good news for Wallonia means bad news for Flanders. Usually, the opposite is the case. The economic progress of one region is, thanks to its repercussions, also advantageous for the other regions. Nation promotion, nationhood, nation development must not degenerate into a situation where what one wins the other loses (that is the definition of the zero-sum game, which also occurs when two dogs fight over the same bone). An extreme case of a zero-sum game is for example aggression and the territorial conquest of another nation. As long as nation development is a positive-sum or a plus-sum game, without detriment to others so that everyone is better off, the national policy is defensible and even desirable. The attainment of a non-zero-sum game situation between nations has an important qualitative aspect: the promotion of human rights both internally, within one's own community, and externally, in the international community. Respect for human rights goes beyond national

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sovereignty and can not be ascribed exclusively to the national policy. It follows, therefore, that every national policy must be embedded in a hierarchy of standards with an ever supranational structure. The question then arises as to where such supranational standardisation gets its validity and legitimacy from. Perhaps a transcendental allusion is inevitable here. From an ethical point of view, it is desirable that each nation should internalise the respect for human rights, i.e. integrate this respect in its own legislation while each nation should be internalised, i.e. integrated in an international community of human rights. The outcome of this vision is that room must be created within each nation, not only for the respect of individual rights and liberties -- including economic and social -- and the fulfilment of certain obligations, but also for democratic pluralism. As soon as the nation, whether in the framework of state autonomy, respects the human rights of its own citizens and of the citizens of other nations, including of minorities, as now enshrined in international law, the lapse into nationalism is warded off. The universalism ofhuman rights is at once combined with the particularism of nationhood. Two objections can be raised against the above assertion. The promotion of human rights can be so exacting, that the interests of one's own people, at least according to most right-wing extremists, can no longer be promoted efficiently. This attitude can arise when foreign nationals are perceived to abuse the freedom granted to them by, e.g. threatening the safety of the native population. Another xenophobic outpour has to do with the fact that the autochthonous population has to pay taxes in order to finance the social benefits of immigrants. Repulsive reactions are here involved that naturally breach the most elementary obligation of solidarity. It goes without saying that a non-discriminating policy must be pursued symmetrically and that immigrants, once they have acquired rights must also assume obligations. Humanistic nationalism however degenerates into unbearable and selfish nationalism when there are calls for positive discrimination to the advantage of members of one's own community. A nationalism based on human rights could be seen in a positive light as a sort of post-nationalism. Furthermore, there are cases where a nation or population group is actually in a zero-sum situation, so that its lot can improve only if another nation or group is forced to forsake its advantages or privileges partly or entirely. A case in point is South Africa in regard to relations between blacks and whites. In such a situation, one can understand that the discriminated nation takes the law into its own hands and begins a struggle for freedom or war of independence, where human rights are inevitably violated, often on a massive scale. The conflictual method is certainly not the optimal -- or first best -- solution to putting an end to an intolerable subordination. Complex ethical problems arise in connection with the use of force. The international community must in the 21st century evolve towards a legal situation which has developed in the modern states in the previous centuries, whereby citizens are denied the right to take "their rights" into their own hands. One of the basic principles of the state of law is that the rights of individuals must be guaranteed by the community and by the appropriate authorities. Such an evolution must take

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place among nations, population groups and states. If their rights are violated, the international community must intervene. Consequently, mediation, negotiation, and arbitration must be given preference at the initiative or under the supervision of a higher multinational authority with the support of international institutions. Such institutions include, in the first instance the United Nations, or organisations such as NATO, which act under UN mandate for peace keeping or peace making purposes. A second criticism is that the above assertion is very naive and devoid of realism, especially when the concept of humanistic nationalism is put to the test in situations in many parts of the world, including in former Yugoslavia, in various republics of the former Soviet Union, in Africa, the Caribbean, etc. This objection is very justified, but takes nothing away from the pertinence of a normative perspective which is naturally based on an ideal. D. New Responsibilities for the International Community The international community has, chiefly via the United Nations, taken a number of initiatives both in terms of shaping doctrine and of concrete policy, to prevent or to stem nationalistic chain reactions. The success and effectiveness and these initiatives are highly contestable, certainly in the light of the tragic events in, among other places, Bosnia, and certain areas of the former Soviet Union and Africa. Emphasis has been laid on the following policy elements. Changes of borders or territorial expansion cannot be recognised when they result from the use of (usually military) force or the threat of force. The UN, the OSCE (Organisation for Security and Co-operation in Europe) and other multilateral bodies must concentrate on preventive diplomacy, which entails the exhaustion of all options of information, detection of abuses, consultation, negotiation, mediation and international arbitration. An ad hoc court of arbitration should perhaps be established under the auspices of the United Nations. At the same time, efforts must be pursued towards disarmament in areas threatened by ethnic conflicts. Arms embargoes must be imposed and strictly enforced, if necessary by military means, under the auspices of the Security Council. A gradation of pressure levers and sanctions must be developed when violent conflicts occur. In such cases, these concern economic sanctions and political punitive measures in the form of diplomatic isolation and expulsion from multilateral organisations (UN, IMF, World Bank). A subsequent step entails dispatching peace-keeping troops with a mandate from the Security Council, if necessary entrusted to a regional organisation -such as NATO, the WEU (Western European Union) or the OAU (Organisation of African Unity) -- charged with peace keeping or peace making roles. Active military intervention is usually involved to separate or drive back the fighting parties . Needless to say, this can lead to all out war with UN troops or with a multilateral peace-keeping force. This sort of intervention has seldom been the

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case to date. The Korean and Gulf wars resulted from specific cases of aggression, where military intervention was expressly provided by the UN Charter under mandate from the Security Council. The way in which the UN decision about Korea was taken is a very special case. Experiences with a UN peace-keeping force in Bosnia, Somalia, and Rwanda have however shown that the UN troops are usually insufficiently armed and protected and have too little elbow room to intervene militarily. The UN should have an international army, equipped with the best weapons and be placed under an integrated command, as was the case during the Gulf War. Peace making in many countries unfortunately but inevitably requires some military intervention. If UN intervention continues to be characterised by too little and too late as is the case today, the credibility of the United Nations will suffer an increasingly heavier blow, at a time when the restoration of the rule of law in many countries cannot leave the international community indifferent. Article 42 of the Charter of the United Nations expressly stipulates that the Security Council may promulgate sanctions against member states when international peace and security are threatened. Recently, especially since the end of the Cold War, a positive trend has been perceptible in international law where the violation of human rights on a massive scale is interpreted as a threat to peace and security. This can lead to the imposition of UN sanctions. Article 51 of the Charter of the United Nations moreover authorises military intervention by member states without the prior assent of the Security Council if, in the name of the principle of individual or collective self defence, a member state calls on the help of friendly nations . The intervention in Somalia in 1993 however was of a different type and innovative at that. It implicitly entailed UN intervention in the internal affairs of a member state because of the violation of human rights. This shows yet once again that respect of human rights is too important a matter to be entrusted exclusively to the good will of individual UN member states . In searching for political solutions, an effort is made to use democratic procedures such as internationally supervised elections, constitutional guarantees for minorities, a balance of powers, political pluralism, and recognition of fundamental liberties. Steps have recently been taken to establish an international court of justice under the auspices of the United Nations to judge war crimes and crimes against humanity. Up to now, however, this has been only an ad hoc tribunal for former Yugoslavia, whereas atrocious crimes are being committed against humanity in many other parts of the world (such as in Rwanda, for which the Security Council has set up another special tribunal), and those responsible come off scot-free. After the Second World War, the inviolability of the national sovereignty of the new states, which had thrown of the colonial yoke, was highly stressed. Interference in internal affairs was inappropriate because it smacked of neocolonialism. Moreover, the confrontation between the East and West blocs made any efficient intervention of the international community impossible in most cases because of, among other means, the abuse of the veto power in the

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Security Council. Under the pressure exerted by tragic events in many countries, there are increasing calls for a legally underpinned right of interference by the international community in the affairs of countries where human rights are violated . Now and then it is even asserted that the right of interference should be converted into an obligation of interference . It would not appear illogical, in fact, to accept that the international community must intervene, militarily if necessary, to prevent genocide. With hindsight, the world community bears a partial responsibility for its passive stance in, among other cases, the extermination of a third of the Cambodian population by Pol Pot. Perhaps this will also be asserted at a later stage in connection with the tragic civil war in former Yugoslavia, once the definitive stock has been taken or once all the consequences of the late intervention of the international community have been assessed . The same assessment applies to the genocide in Rwanda. The end of the Cold War gave rise to hopes that the UN, free at last from the confrontation between the East and West blocs, would playa more efficient role as peace keeper, or if necessary, as peace maker. The results of UN intervention are disillusioning. This has to do with the financing problems which rise in connection with UN interventions, but also with the selfishness of many member states . Furthermore, it is becoming increasingly apparent that the workings of the UN are being overtaken by the facts. This applies especially to the way the Security Council works, still dominated as it is by five permanent veto holders, which are also nuclear powers. There are calls to have Japan, Germany, India, Brazil, Nigeria and so forth join the sanhedrin of the permanent members of the UN Security Council. If the EU wants to pursue a real foreign policy, it could conceivably claim its place at the table of the Security Council, represented by an EU member state on a rotational basis. But the time is not yet ripe for such a move. Even more wishful thinking lies behind the idea that, in addition to the general assembly of the UN, a sort of "UN world assembly" should be established, where elected citizens of the member states would sit instead of the states themselves. Ethnic tensions often have social backgrounds and would in many cases be expressed with less virulence if the basic material needs of the population were satisfied. Whence the whole series of proposals world-wide in connection with development policy, to promote the basic needs of the local population groups. The nationality question, which is expressed in a particularly tragic way in many places in the world, poses also the problem of the desirability and feasibility of a multicultural society. There is a growing trend to dismiss the possibility of a multicultural society as unrealistic, dangerously conflictual and incompatible with the preservation of one's own culture. For me, the existence of a tolerant, multicultural society, with respect for human rights on all sides, is an ideal worth striving for. I am for that matter convinced that in the 21st century, Europe and many other countries and groups of countries will to a certain extent become more multicultural. The current information and communication revolution makes this inevitable. The inter-penetration of cultures is unavoidable and irreversible. Any protectionism

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in this direction leads to the artificial cultivation of a sterile and mummified museum culture and the extension of untenable forms of apartheid. Moreover, what is actually meant by "cultural purity?" I find this a meaningless expression. A culture is a living organism. It evolves dynamically, from its own endogenous force, but also by absorbing exogenous influences, both in time and in space. Roman civilisation is inconceivable without the assimilation of Hellenic culture, and Greek culture found a powerful spatial vehicle in the Roman Empire within which to spread. The European Renaissance is a sterling example of multicultural inter-penetration. In the 20th century, multiculturalism became the norm in most arts through, among other means, the influence of Japanese and Chinese drawing on European painting or of African Art on European sculpture and of African-American music on Western music. The application of an ethnic standard on science is sheer nonsense. Today, more than ever, science is essentially an international and cross-border affair. Otherwise, it has no chance. Naturally, multiculturalism progresses in fits and starts. Assimilation can lead to marginalisation and the extermination of the weaker culture (known as ethnocide), A multicultural society therefore presupposes cultural pluralism, just as democracy requires political pluralism. A set of values must actually be communally experienced if apartheid and the formation of ghettos are to be avoided. A balance must be sought between integration and the preservation of identity, between the unity of a society and diversity within that society. There is no alternative, in my view, either in terms of social ethics -- for cultural apartheid soon degenerated in to generalised apartheid -or with a view to cultural progress which, without cross-pollination is doomed to sclerosis. The 21st century will gradually witness the emergence of a world civilisation with very common characteristics, dominated by far-reaching interpenetrating and hybridisation. Specific characteristics will continue to persist, the most important of which will be language. A limited number of languages (English? Japanese? Chinese? Spanish? German? French? ) will serve as international vehicular languages, but most of the current languages will manage to continue as cultural languages, not because of successfully waged "cultural struggles," but because of technological progress. Computers and information technology will perfect simultaneous interpreting of most languages into most of the others, so that more people than is the case today will be able to speak, attend conferences, give lectures and publish in their own languages. The world community is at a crucial transitional phase, where, after the end of the cold war, blocs are being formed between groups of countries (EU, APC, OAU, MERCOSUR, NAFTA, etc.), under pressure from technological and economic determinants. Such a tendency for bloc formation is not without danger, unless due measures are taken, via the World Trade Organisation, to maintain and promote free trade and active and fair competition. A more cooperative world structure will gradually result in an increasingly more confederal world-wide consulting structure, with common decision-shaping and decision-making forms. More and more global network societies will

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emerge, stripped of tight hierarchical and centralised policy structure. A symbiosis of particular and universal perceptions of values is possible, at least if the experiences of the twentieth century are assessed in a bold and lucid manner.

GLOBAL GOVERNANCE AND TIlE RULE OF LAW HUMAN RIGHTS AND GENERAL PRINCIPLES OF GOOD GLOBAL GOVERNANCE Rene Foque

"Only the category of right, just law, but none of its applications, is universally valid." (Gustav Radbruch)' "Members of a society of principle accept that their political rights and duties are not exhausted by the particular decisions their political institutions have reached, but depend, more generally, on the scheme of principles those decisions presuppose and endorse." (Ronald Dworkin)'

I. From International Relations to Global Governance

The term global governance has almost provocative, or at least innovating connotations. It refers to a growing inadequacy in classic terminology, which can be found in customary expressions such as international relations and international law. This is no superficial coincidence. On the contrary, it reflects a critical change in contemporary political, economic and legal relations. This transformation has corollary ramifications for our conception of law. Global governance and the rule of law constitute the two components of the related conversion process, both from a practical as well as a theoretical-philosophical perspective. The present paper focuses on the latter, more philosophical perspective. In this way, we can reflect with appreciation on the academic career of Erik Suy who - during the first phase of his career - taught not only international law, but also lectured on the philosophy of law.

25 K. Wt!llens (ed.),lnltmllJtiolUJl Law: Theory and Practice. 25-44. @ 1998 Kluwer Law ltuemational. Printed in the Netherlands.

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Worldwide relations and events - especially the legal regulation thereof - have lost the accustomed protection of their international character, at the tum of the twentieth to the twenty-first century. The reach of the concept of international itself becomes problematic. Does it still refer to relations between sovereign nation-states and their respective spheres of influence or can it now be said to refer ever more explicitly to the emergence ofa common law for mankind? Many authors have ascribed the fall of the Berlin wall as the symbolic turning point in international and worldwide relations. Not only does the ideological division of the world into almost autarchic provinces of influence seem to have come to an end, but this end of ideology is globally interpreted as being the ideal vehicle for the recognition as well as the unrestricted advancement of monetary, industrial, economical and ecological realities, which were earlier somewhat irrelevant in a world apportioned into nation-states and distinct spheres of influence. The intermediate cultural philosophical roots of international law, with its universal ambitions, can be without doubt traced back to the medieval attempts to develop a Ius Commune for the entire Christian world.' Traditionally law and religion constituted the two primary integrative phenomena which were able to consolidate society and culture into one. This was apparent in the activities of the first major European universities, from Padua and Bologna to Paris, Oxford, Cambridge and Leuven. Since the end of the eleventh century when the lost books of the Justinian codification were found in a Northern Italian library, intense research has been carried out in the fields of both law as well as religion. Not only the holy text of the divine revelation to be found in the old and new testaments, but also the consecrated material of Roman law in the Codex, Novellae, Institutiones and Digests were exhaustively studied and interpreted as one integral unit. By means of the scholastic method of text-reading all material was analysed and interpretations were discussed in order to reveal terminological and conceptual connections: The thus transformed Roman law, taught - as a rational system - in the first significant European universities, was furthermore accredited with universal scope and construed as a Ius Commune for the entire Western christian world . This prerogative was further reinforced by the merging of law and religion. The foundations of law were conceived from a theological and metaphysical emanation of natural law. The association of positive and natural law was not only investigated and perfected by reviewing both legal and religious texts, but the integrative process was even politically supported by ecclesiastic authorities. In doing so, the church served as a de facto supra-national authority, overseeing both the elementary unity of all law as natural law, ands the implementation thereof. Accordingly, at the beginning of the thirteenth century a precondition for attaining a professorship was the approval of the Church. This provided the reception of Roman law as a Ius Commune for the Christian world, with a scientific basis and a sound basis in natural law.

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As important as this medieval Christian tradition may have been for the dawning of a universal common law for mankind, modem international law only substantially progressed as a result of the political ramifications brought about by the Peace of Westphalia (1648). This marked an end to the thirty-year old religious wars as well as to the seemingly irreducible strifes between nations and peoples, between religious beliefs and private interests.' The Roman-Catholic church sacrificed its monopoly as the keeper of legal unity through natural law. Further, the concord between church and state was categorically and definitively relinquished and nation-states were henceforth free to enter into alliances with others, in a setting of religious and philosophical pluralism. In line with this development, a new order of international relationships began, based on the mutual recognition of ideological identities and spheres of influence. All this resulted in a system of international relations and international law, which was based on the rejection of a singular authority integrating all nations as well as on the recognition of the sovereign nation-state as being the only legitimate source of law. In our political history, the Peace of Westphalia marks a turning point, intrinsically related to the legal philosophical change of paradigm modernity originated. The legitimacy of the legal order is no longer interpreted - in a vertical sense - as being founded in a higher order, whether of cosmological conception or as created by God according to his will and revelation The legal order from this point on finds its justification in the horizontal concordance of wills between parties and its application in the axiom that resulting agreements should be upheld (pacta sunt servanda). Social contract theories unequivocally reflect a philosophical representation of this change of paradigm.' It can be observed that the plurality of partners in the social contract - as in for example, international law - regards the relationships between nation-states, (each culturally and politically homogeneous), antropomorphically interpreted as if they were contracting partners to a common agreement, epitomizing knowingly and willingly acting human beings," Furthermore, the plurality as recognized by the Peace of Westphalia is relative. Western cultures may be referred to here, all being varying manifestations of the Jewish-Christian tradition. As such, the international order is contemplated - philosophically and empirically - to be a reflection of the sovereign nation-states. Logically and historically, states depend upon each other," In this sense, one may agree with Verdross in placing the (philosophical) roots of international law in the early-medieval tradition, instead of pinpointing the Peace of Westphalia as the original setting for modem international law. In such medieval tradition the great Western nation-states found the spiritual conditions for a sovereign consciousness that they are indeed the true subjects of politics and law. All this can explain why international law - until the beginning of the twentieth century - was able to float on the cork of a more or less homogeneous view of the world, with norms and values deemed to be common to the global community. The first World War - with its vast flood of people without a home,

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without a country, without citizenship - shatters vigurously this seemingly evident presupposition. The rise of totalitarian systems definitively erodes any trust in the comprehensive ideals of humanity and justice. How can one after Auschwitz - philosophically and politically - uphold any belief in a world order that grounds its stability in a durable consensus regarding the foundational values of humanity.' Finally, the often painful process of de-colonisation subsequent to the second World War, followed by substantial migration from poorer to richer countries, revealed the full extent of the consequences of economic inequality, multiculturalism and philosophical pluralism on a global scale. Against this backdrop, one might wonder whether the euphoria at the fall of the Berlin wall should be debunked as a perilous illusion Does the triumph of Western ideology, with its complex blend of Christianity, humanism, liberalism and market theory, provide us with a sufficiently solid foundation for the conviction that the world community is on its way to a definitive victory over every irreducible heterogeneity," Or to put it differently: will the alliance of universalism and (inter)nation-state thinking remain upheld? Or does the change of paradigm from international relations to global governance also represent a schism in the alliance? From this query the present contribution will attempt to offer a legal philosophical reflection on the significance of human rights and the role general principles of law may be able to play in the process . II. Human Rights

At the end of the second part of her acclaimed work The Origins of Totalitarianism, Hannah Arendt analyses how the decline of the nation-state heralded at the same time the end of the great narrative discourse on human rights." The process of the decline of the nation-state coincided with the erosion of the broader legitimating bedrock of universalist natural legal thinking, which had evolved since the Christian Middle Ages up to the apex of rational law ," The time between the beginning of the twentieth century and the end of the first World War revealed how the nation-state unquestionably forfeited protecting and upholding so-declared universal human rights. Arendt scrutinizes the British reign in India, the French conquest of Algeria and the Boer Wars in South Africa, and uncovers the major traits of unfolding and finally omnipresent racism. Democratic nation-states, while paying lip service to the ideals of human rights, nevertheless unequivocally served as proponents of imperialism and racism. Only at the end of the first World War - seen in Peace Treaties - did it become apparent how the classic image of the nation-state had desintegrated. As Hannah Arendt put it. "Their internal disintegration came only after the first World War, with the appearance of minorities created by the Peace Treaties and of a constantly growing refugee movement, the consequence of revolutions." 13 A significant aspect of the process of the internal desintegration of the classic nation-state lies in the substantially de-nationalising impact of the vast migration

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movements caused by the War. The position of minorities and refugees turned them into a-patrides, people without any claim to national legal protection or lawfully maintained human rights. The great European nation-states obviously did not find any constitutional safeguards to guarantee the vindication of human rights for these groups. For this reason Arendt came to an historically bitter conclusion: "The very phrase 'human rights' became for all concerned - victims, persecutors, and onlookers alike - the evidence of hopeless idealism or fumbling feeble-minded hypocrisy.?" This situation - in Arendt's opinion - painfully disclosed the fundamental paradox of the classical concept of human rights, a concept which at the same time is very much oriented towards natural law as well as individualism. Furthermore, it is connected to a profoundly functionalist notion of the state and dominated by a distinctive antropocentric position.f In terms of the declarations, human rights are dictated as natural rights, inherently related to humanity and accordingly preceding any stately or political order. Human rights are thus interpreted as being unrelated to man's capacity as a citizen or as a member of a political community. Consequently, the state merely performs a functional role, implementing and safeguarding natural human rights within its community. In addition, a significant antropocentric perspective comes to the fore. Not so much in the sense of portraying nature as an ideal, transcending any human order as such, but conversely in the sense of securing human rights in the sovereignty of humanity itself. Here lies an insoluble paradox in which the portrayed concept of human rights threatens to wither, because it concerns an abstract image of man to whom personal sovereign powers are assigned according to the image and appearance of the sovereign, ruling society from an external position." Abstract man in human rights discourse is similarly construed as a creature with unalienable natural rights, independent of society, who is at the same time viewed as part of a social nexus. During the French revolution, in its glorification of the abstract sovereign man in the Declaration des Droits de l'Homme et du Citoyen, mankind was interpreted to constitute the third estate, identified with the nation as such, as evidenced by the famous words of Sieyes." Arend notes that: "From the beginning the paradox involved in the declaration of inalienable human rights was that it reckoned with an 'abstract' human being who seemed to exist nowhere, or even savages lived in some kind of a social order" .18 sClassic human rights discourse presents a typically Cartesian image of man. For Descartes, man is a thinking substance, which forms his essence. He argues in his notorious Discourse on Method: "From that I knew that I was a substance the whole essence or nature of which is to think, and that for its existence has no need of any place, nor does it depend on any material thing; so that this 'me', ... is entirely distinct from body ... and even when body were not, the soul would not cease to be what it is.,,19 Descartes' image of man concerns a disembodied self, a thinking substance, in its deepest being not defined by its external appearance or its physical existence. The same applies to man's political existence in the world. His membership of a certain political community is seen according to the

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Cartesian tradition as being merely incidental, by no means of any influence on the essence of his being. Within such a philosophical framework, human rights will clearly be understood to be entirely a priori to any particular political or legal order. On the contrary, they are the expression of an idea of mankind itself. Hereins lies the paradox of the traditional human rights discourse in the great declarations of the eighteenth century, which themselves cannot be ' detached from their particular political and legal context or ambitions. When a human being is seen only as a human being, he will be vulnerable and rapidly lose his status as an autonomous and responsible subject in the true sense of the word; he will be an object to be treated, to be moved or - at best - belittled. Only by becoming a citizen of a particular political and legal community will he be able to overcome his vulnerability and rely on legal protection and on recognition of his person. Indeed such particular interest and specific claim of people comes to the fore by the specific political act as constituted by the declaration on human and civil rights ." These many a-patrides and refugees literally become in Arendt's view displaced persons, who have lost their place in their own homeland and cannot find any guestland in which to become a citizen.They are the living proof that Descartes was mistaken when he claimed that human existence does not need to have a place for humanity to be fulfilled. This illusion was both hazardous and tragic yet paradoxically advertised by the classic human rights declarations - to think that a human being after forfeiting political-legal status as a citizen would still be able to rely on a guaranteed endorsement of his unalienable human rights. A Cartesian illusion - Arendt calls it theevidence of hopeless idealism or fumbling feebleminded hypocris/,- controverted by the history-of-events, in which human existence necessarily implements itself.22 "It seems that a man who is nothing buta man has lost the very qualitieswhich make it possible or other people to treat himasafellow-man. " "We are not born equal", Arendt continues, "we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal 23 rights." Here lies the essence of as well as the condition for the reality value of human rights. The essence of equality between people is their membership of a political community and the related status of being a legal subject, which is equal to being a person in the sense of the law. Accordingly, human rights do not epitomize the granting of rights to pre-political or pre-legal individuals but to individuals, whose identity is thoroughly rooted in citizenship and legal subjectivity. Human rights are directly related to mutual recognition of such citizenship and legal subjectivity. Mutual recognition of citizenship and legal subjectivity is only feasible, according to Arendt, when people are no longer limited by their existence as a naked, individual human beings, but affiliate with others in making and sharing their world. In such collaboration and in their consciousness of belonging to a common world, they are a public realm, in which human rights perform a direct existential role, at the helm of a shared and mutual responsibility. In order to fully apprehend such criticism on the illusory and 'hopelessly idealistic' character -

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particularly in confrontation with the phenomenon of global governance - one should briefly reflect on Arendt's analysis of the meaning of public realm. III. The Public Realm Hannah Arendt's perception of the public realm - in itself even a central notion in classic Athenian views on democracy - consists of two fundamental characteristics." Firstly, it is a space of appearance, in which all that appears can be seen and heard by everyone. The latter should not however, be interpreted in an ingenuously sensory way, but in a philosophical sense. In the public realm the individual subject is not surrendered to the isolation of perceived autarchy, nor reduced to spiritual nakedness - in the form of a desembodied self. One only becomes a person in the true sense of the word when he can function as an actor in a common existential space with fellow subjects, while interrelating with them. Hence being a person in the public realm - expressed in terms such as actorship or citizenship - cannot be interpreted as being a more or less incidental feature of man, needed to realise his original rights." As a person he is observed by others, and he becomes - by observing them - conscious of his position toward others. When a subject-actor acts and speaks in the public realm, he acts and speaks in the presence of others, his fellow-actors . Whatever we do or do not do in the public realm can and should be attributed to us. As far back as the seventeenth century political philosopher Thomas Hobbes was intrigued by the word person. In his famed Leviathan he reminds the reader that the term refers to the Latin word persona and to the Greek word prosopon. The latter means face while the former signifies outer appearance, or even more specifically mask. The Latin term persona derives from the world of theatre, and was used to denote a theatrical mask. It was transferred from the province of the stage into Roman law." This is not fortuitous. The theatrical mask indeed marks the boundary between the private life of the human actor and the publicly displayed aspects of personality he portrays. As Hobbes wrote: "So that a Person, is the same that an Actor is, both on the Stage and in common conversation"," On the one hand the irreducible mutual dependence in the public realm renders the subject vulnerable, as the regard of the other can never be controlled or diverted beforehand. On the other hand such action is affirmative: the initiating power of personal engagement can come to the fore, become recognised and accordingly ascertain public significance. Secondly, the public realm can be interpreted as a world of durability. The public realm is not a natural phenomenon, but an artificial speace created by man. It is the world of culture, architecture, sciences and art, institutions, state and law. This feature of durability can also render our actions affirmative. By acting and speaking in the public realm, we are extracted from the volatility and absolute contingence of private existence. By stepping into the light of the public realm,

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the subject can be admitted into public memory, as if he were monumentalised in history. He can receive a common history in which his actions in collaboration with others may obtain as well as durable significance . The public realm can only become a realm of appearance and durability if two conditions are met. Firstly, mutual appearance always presupposes a plurality of positions: "Being seen and being heard by others derive their significance from the fact that everybody sees and hears from a different position"," In Tocqueville's dim portrait of a centralised political order, he painted an amorphous society, where any public realm is annihilated because of the autarchic subject's attachment to his own isolation, with a wish to forego any public idiosyncracy. The notion of plurality has thus become obsolete. Contrarily, the public realm not only protects the subject in his negative freedom - freedom from -, but also in his positive freedom to, participate in the common cause. This is feasible through the initiating power every subject-actor can realise from his specific position in the public realm. Participation - through action - in the public cause is different from administrating and managing social mechanics. Arendt is clear on this point: "The grammar of action: that action is the only human faculty that demands a plurality of men; and the syntax of power: that power is the only human attribute which applies solely to the worldly in-between space by which men are mutually related, combined in the act of foundation by virtue of the making and the keeping of promises, which in the realm of politics, may well be the highest human faculty" ," The citizen of the public realm is not a particle of the social mechanics of interests and needs under the administration of a social engineer, but an actor, whose personal freedom is realised through plurality and whose power is determined by the ability to collaborate with essentially separated others. This leads to the second condition for a public realm constituting a realm of appearance and durability. The necessary plurality of positions needs to be an institutionalised plurality. This may be the case in the sociological sense of the word, where the objectivation of action patterns is recognised foremost as a factor of durability and stability. More important than the internal-normative meaning of institutionalisation, and even as a prerequisite for a limitating condition, is the more formal significance of the term. This concerns the objectivation and securing of a formal topology, to warrant the plurality of actors and the appearance of action in the public realm. Arendt notes : "Every activity performed in public can attain an excellence never matched in privacy; for excellence, by definition, the presence of others is always required, and the presence needs the formality of the public, constituted by one's peers, it cannot be the casual, familiar presence of one's equals or interiors"." The formality of the public argued for can be realised in a framework of legal concepts such as legal subject, legal relation, legal action, etc., and by what the American legal theorist Dworkin called the principles the community should adopt as a system or the scheme of principles, presupposed by every singular

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activity and decision-made in the public realm", such as fairness, proportionality, etc. This is in relation to the formal character of these concepts and principles. It also relates to the plurality of possible meanings they create and can safeguard, vis-a-vis actual actions and decisions, and not their imagined fixed contents in the light of an image of man and society declared natural. Moreover, these concepts and principles and their possible meanings can never be exhausted or monopolised by anyone particular interpretation or application. They are essentially under-determined. They are characterised by their counterfactual features in relation to the factuality of the context in which they function," As such they are able to provide the potentiality and the idiom in which the dynamics of political and social development can be realised and directed . The vacuity of concept and principle, (their essential indeterminability), is the voidness and the latent character that the French political philosopher Claude Lefort discussed, 33 when he referred to the empty domain of power, sovereignty andgeneral interest. The whole of concepts and principles which - as indicated feature a counterfactual character - indeed concerns the formal basic structure of the public realm (internal and imminent), but at the same time concerns the symbolic externality of the actual and factual developments in the public realm (external and immanent). This not only pertains to the public realm of the nation-state, but also - if the concept of global governance is to have any political philosophical relevance - to what can be denominated as the global public realm. In this latter perspective, it is of crucial importance to apply Arendt's analysis of the public realm to the level of worldwide relations. When reference is made to global governance, this involves a multitude of actors in the global public realm. Not only nation-states or large globalising international concerns, but also and increasingly, even more actors such as the World Bank, the International Monetary Fund by their actions and decisions directly determine the position of individuals, groups and societies. The Legal protection of these individuals, groups and societies is often directly or indirectly at stake, as well as the respect for their (basic) rights ..At the same time the way participating actors can be addressed - within a formality of the public, legally articulated and institutionalised for the global public realm - may not always be straightforward. The latter creates a serious problem for the legitimacy of their actions and thus for the mechanism of global governance as such. Which legal theoretical framework can be developed to establish the public realm guaranteed by the rule of law, as a safehaven for freedom , participation and plurality, without having to fall back on universality claims of pre-political and pre-legal natural law and on an idealistic view of man?"

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IV. General Principles of Law The characteristics attributed to the public realm according to Arendt's analysis, offer a significant frame of reference for the interrelationship between global governance and the rule of law. They concern - in a nutshell - appearance, durability, mutually recognised plurality and legal institutionalisation of such plurality in a counterfactual structure of concepts and principles that remain underdetermined in relation to daily actions, and even governmental actions. The above may lead to an answer regarding the quest for a legal theoretical framework to stably intertwine government and the rule of law in the public realm, and in the global public realm. General principles of law - in the aforementioned counterfactual sense - playa major role," For the development of a theoretical framework regarding the meaning and effect of general principles of law, Dutch jurisprudence has certainly been preeminent. For a good understanding of the effects of general principles of law, canvassing and construing these Dutch contributions may lead to significant insights. Paul Scholten, professor of private law at the university of Amsterdam, in a lecture at the Dutch Royal Academy of Sciences in 1935, questioned the meaning of thegeneral principles of law recognised by civilised nations under Article 38 of the International Court of Justice's bylaws," The first commentators on these bylaws did not come to an unequivocal conclusion with regard to the scope of this text. Does it refer to an additional set of norms and values, separate from applicable international statutes, hence completely judge-made and declared applicable in casu? Or does it refer to a set of customary rules, predicated on the basis of their lenghty factual existence and originated from an - at least imaginary - consensus that should be sustained? According to Scholten, neither of these approaches can be upheld. In the first case general principles of law would finally be reduced to a subjective decision of the judge. In the second case an unwarranted custom - almost metaphorically - is transformed into a consensus. Hence, general principles of law and human rights face a similar problem. Do they not suggest a normative a priori? This would refer to ideals such as humanity, reasonableness, morality and civilisation, preceeding any particular existence of man as an actor in the public realm. In short: do general principles of law hold a natural law-like status that can be dissociated from instances of actual citizenship and legal subjectivity, whenever they are appealed to? According to Scholten "In every legal systems' regulation and adjudication general principles and ideas can be found, from which particular statutes and judgments can be deemed to be derived. These principles and ideas are as much part of law as the statutes and judgments themselves"." Indeed, if a legal system is to be legitimate and justifiable, it will have to be more than an contingent amalgamation of fortuitously originated or contradictory norms. Each rule or decree will have to be recognisable as an expression of a general set of valueorientations and the expectations founded thereon, deemed to be common for the society in which the rule or decree claims its legal capacity.

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This does not connote that general principles of law should be interpreted as a posteriori constructions, subsequently projected into rule creation and decision

making "only of relevance to the wstems'structure (...) by pointing common aspects of particular regulations". Neither can the legitimacy of general principles of law be predicated on some persons or some institution's personal authority. "One should adknowledge that the principle is recognised (...) yet this recognition can only be a support for what has already been posited elsewhere: the principle speaking for itself, forcing action into a certain direction"." Thus general principles of law hold - not unlike human rights - a relative autonomous significance.Yet how can they be so regarded, if not according to natural law? The latter issue has been raised in sophisticated legal philosophical debates, and increasingly often touches extraordinary practical problems of legal development in a multicultural society. Such practical relevance rapidly surfaced in the Dutch legal order. Scholtens' general remarks in 1935 served as the groundwork for the development of general principles of good governance in administrative law. Judge Wiarda, president of the Dutch Supreme Court (Hoge Raad der Nederlanden) in the seventies, already argued in his 1948 inaugural lecture at Utrecht university that the development of general principles is essential to allow the corpus of administrative law a significant domain in the tension between private law and constitutional law." The growing important governmental challenges threaten the legal order's unity if one does not - in legal practice also - explicitly resort to the general principles predicating such an order's unity as well as its diversity. In his 1952 Preadvies to the Dutch Administrative Law Association, Wiarda for the first time submitted an unequivocal framework for the programmatic objective of his inaugural lecture. Following a number of significant observations regarding the theoretical and practical relevance of general principles of law with regard to the citizen's legal protection vis-a-vis the government, he presented a list of general principles of good governance as a benchmark for the legitimacy of government action," "Legal principles", according to Wiarda, "cannot be seen as norms directly applicable to a given factual situation, as legal regulation normally would, but merely as signposts, pointing us at a certain direction, when judging such situation". He continues: "It may even occur, that in a given situation two or more general principles of good governance point at diverging directions, thus rendering the decision dependable on balancing those principles"." Wiarda here represents a view on general principles of law which opposes any implementation of natural law. If one locates general principles of law within natural law, they would indeed hold invariable and universal norms and values, from which one could irrefutably deduct the applicable norm for the case at hand. For Wiarda - in accordance with Scholten's distrust of a natural law interpretation - general principles of law do not represent universal values, preceding social and political reality. On the contrary, they offer directions for the interpretation of situations and their context. Within such a process of interpretation, they enable a competent situational consciousness to be expressed

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and cultivated, as well as an appropriate sense for what could be termed

problematicity.43

V. Law and Principles of Law as Cultural Phenomena Wiarda does not view administrative law as derived from invariable natural law, but on the contrary as a cultural phenomenon in itself. This line of thinking does not only relate to his tutor Scholten. Both follow a legal philosophical path, developed during the first half of this century - in line with Kantian critical philosophy - in several parts of Europe," Gustav Radbruch, a German legal scholar and minister for justice during the Weimar-republic, suggested - in advance of his 1914 book Rechtsphilosophie - that law is a cultural phenomenon, 45 since law is value-oriented. This does not entail that law can cherish the pretension of capturing true justice, nor indeed will it be able to realise it. Law calls for a certain humbleness, in line with its vulnerable historicity" and the fundamental insight that not only every culture is immersed in law, but also that law belongs to the culture within which it functions . Law can never be understood as a naturally given system of norms, preceding such culture." Law and culture are intertwined. This means that they can never be understood as the definitive realisation of pre-political or pre-legal values or of a natural morality deemed to be universal. According to Radbruch time and time again an historically determined mixture of humanity and barbarism, of truth and error, of taste and tastelessness emerges. On the other hand, this does not preclude that law - as cultural phenomenon - is value-related. And Radbruch concludes: "Culture is by no means pure value, but rather a mixture of humanity and barbarism, taste and tastelessness, truth and error; but in all its phenomena, whether hampering or promoting values, whether missing or realizing values, it is never thought of without relation to value . Culture is not realization of value, yet it is whatever has significance or meaning for the realization of value; or C..) it is 'striving for the right",.48 Thus formulated, culture is always the product of the innovating input of acting and adjudicating man, who continuously tries to renovate the values on which the community with others should be focused . Conversely, culture provides the necessary condition for man's meaningful actions and adjudications in collaboration and co-adjudication with others. In acting and adjudicating man is not only a culture producer, but indeed also a product of culture. Radbruch, and the legal philosophical tradition represented by him, sees the values upon which law is focused - particularly human rights and general principles of law - the way he sees such ideals as beauty and truth. On one hand they are inspiring and regulating ideas for day-to-day practice, yet on the other their contents are never predetermined in such a way that any practice can simply be deduced from them . Law is a cultural phenomenon and is as such related to values, to the realisation of what Radbruch calls the idea of law. This

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does not entail that such an idea of law - encompassing justice,.legal certainty as well as efficiency- can be captured a priori and hence simply implemented in the changing contexts of society. In the same way as the artist does not know the meaning of beauty in advance, although it is the aim of each work of art, to succeed in capturing it through the act of painting or composing, law receives its varying contents in legal practice itself. And as creating beauty is co-determined by the matter with and the manner in which the artist works, the same applies to the idea of law: co-determined by social situations and conflicts. According to Radbruch, reflecting the Kantian critical tradition. 49 'We call this relation the 'material qualification of the idea' (Stoffbestimmtheit der Idee), deliberately adopting the double meaning of the term: qualified by the matter because qualifying for the matter (durch den Stoffbestimmt, weil fUr den Stoff bestimmt)"." Radbruch's interpretation of traditional human reason is that it is not a melting pot of concluded theoretical knowledge or immediately applicable ethic or esthetic norms. Human reason, being the foundation as well as the fountain of the conscious citizen's free participation in the public cause, is to be understood as "the mere power to arrive at such cognitions and norms; that is not a complex of answers, but rather one of questions, of points of view from which what is given is to be approached; of forms which need to be filled with a given substance, of categories which need to be applied to a given material, in order to yield statements or judgments of definite content. Those cognitions or evaluations which are definite in content are never produced bft 'pure' reason, but always only by its application to something definitely given." 1 This striking portrayal of human reason in general and of legal reason in particular, as the capacity for finding and solving problems, also implies a warning against an overly moralism of legal practice. When such practice posits a clear and established ideal of 'the' idea of law against the threatening an absence of norms in society, and this would subsequently cause a reduction of legal practice to a mere instrument in the fight against such absence of norms, this development would not only contradict the underlying philosophy of democracy and the rule of law, but would in addition raise expectations that cannot be accomplished. VI. Global Governance and an International Community of Principle

Scholten's reflections on the significance of general principles of law and Wiarda's analysis of general principles of good governance not only epitomised the neokantian trend in contemporary legal philosophy, but also served as the pioneers of developments in legal theory. Contemporary legal theorist Ronald Dworkinin his still notorious 1986 book LAw's EmEire - specifies legal principles as an implicit philosophy, at work in positive law. Law - at the rim of being disunited and scattered into singular decisions and rules in line with a positivist perspective - is thus provided with a normative interconnection and integrity. If law wishes

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to appeal to integrity and not risk a reduction to mere positivity, to a rulebookmodel-conception of law, then it will have to be reconstructible in terms of an

interconnected cluster of principles, upon which it is considered to be founded . Dworkin refers to principles the community should adopt asa system and thescheme principles to mark their nevertheless latent and always provisory character. Indeed: legal principles should not be understood in a natural law-like fashion as a system of universal norms and values, preceding positive law; legal principles experience a less volatile existence when compared to statutes and judgments. They reflect what French historian Fernand Braudel has termed the perspective of 54 the longue duree. Their implementation depends on the impact of the better argument and they accordingly are always the provisory result of public debate. Dworkin uses the metaphor of a theatre of debate about which principles the community should adopt as a system, expressly not referring to arguments of mere efficiency and efficacy in the realisation of individual insight and influence. In a society of principle - according to Dworkin - a legal concept is presented in which law cannot be identified as lawful command. Thus the rule of law cannot be assimilated with a regulatory state, in which values and norms are ultimately determined by the legislator - indeed also those norms and values to which he should be subjected. On the contrary, the rule of law postulates an ideal of a political community and of a legal order, in which no one claims to hold the truth nor to have the authority to impose such a truth if they possessed it. The significance citizens, groups and nations have in their political community and their legal order, traditionally denoted with the term general interest" is apparent here. The core of the rule of law holds that all legal development and all government activity should be reconstructible in terms of general interest. Each adjudication and each decision, even a decision to 56 concede , is to be measured and justified according to such a benchmark of the rule of law. This entails that adjudication or decisions should be measured according to their implementation of the general interest, to which they are deemed to implicitly appeal. If that were not the case, then they would depart from the theatre of debate about which principles the community should adopt as a system, that Dworkin spoke about. In the latter definition lies the signifying core of general principles, the category of general interest as well as human rights and the general idea of law impregnating legal development. Time and time again regulative, but still counterfactual concepts are raised giving a direction for legal development in practice, yet being at the same time determined by the pragmatic situation and the context of such development. Or as Radbruch so ingeniously put it: qualified by the matter because qualifying for the matter. To this should be added that every determination of human rights, legal principles and the idea of law in a pragmatic situation or context, never exhausts the possibility of interpreting these concepts in another way, but always leaves them underdetermined and hence open to other interpretations, in their diachronous as well as in their synchronous, comparative or multicultural dimensions,"

at

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VII. General Principles of Good Global Governance This view on human rights and general principles of law does not limit itself to the issue of legal development within the legal order of the traditional nationstate. Indeed within the national legal order also a paradoxal development subsists of a traditional type of law as the emanation of a more or less homogeneous pattern of norms and values in a social-economic and cultural context, increasingly characterised by its heterogeneity, in a multicultural setting, within its own borders as well as in an external setting of globalisation and mondialisation. One then wonders how much heterogeneity a society can handle before fatally desintegrating?" This is of vital relevance for governmental practice which has to find its way in cosmopolitan societies as well as in an increasingly globalising context. Already at the beginning of this century, the American philosopher John Dewey focused attention on the necessity of pragmatic thinking . According to Dewey, such thinking may generate a strong educational effect. Social practice - especially with regard to law - could and should bring about a learning process in which a plurality of positions are recognized, and in which it becomes feasible to develop an institutional practice of plurality also with regard to any related conflicts that may occur. Modern society demonstrates this. In a growing multicultural society, homogenising natural law thinking has lost all legitimacy. John Dewey strikingly portrayed the multicultural diversity of cosmopolitan societies: "Inside the modern city, in spite of its nominal political unity, there are probably more communities, more differing customs, traditions, aspirations and forms of government or control, than existed in an entire continent at an earlier epoch. (...) A modern society is many societies more or less 59 loosely connected" . The phenomenon of cosmopolitanism can be interpreted as a compact version of what is increasingly happening in the international domain. One could argue that in both instances, the conspicuousness of the classic nation-state and the connected homogeneous cultural image is questioned. This influences in a most fundamental way our perception of law. The regulating function of law in an increasingly heterogeneous society lies in the mediating role law that has to fulfill in order to gather contradicting beliefs and cultures into an interconnecting alliance. In increasingly complex societies - as sociologist Durkheim noted - the role of law evolves from a more repressive nature to a more distributive one. Even Dewey observed this at the beginning of the century. "In the olden times" he stated - "the diversity of groups was largely a geographical matter. There were many societies, but each, within its own territory, was comparatively homogeneous. But with the development of commerce, transportation, intercommunication, and emigration, countries like the United States" - and currently indeed even the European Union - "are composed of a combination of different groups with different traditional customs.t" Governments need to develop greater flexibility and a new kind of efficiency. It is not rare that the basic norms that constitute the rule of law are experienced to be a restriction for our

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daily activities and decision-making." This is such a time when general principles of good governance necessarily playa central role in legitimizing the rule of law. They transcend the restricted province of administered law and may lead to the development of what Van Gerven termed general principles ofappropriate actione" To let general principles of appropriate actions play that role, they must be part of a pragmatic legal approach. The problems Dewey referred to can be seen as antecedents for the current problems from a global perspective. Global governance needs to be constantly supported by the general principles of the rule of law. Accordingly, one can refer to the general principles ofgood global governance. The pragmatic legal approach in which these principles are to be embedded must not reflect any naive pragmatism, but should pursue the more philosophically established trail of pragmatic thought. Dewey indicated - in Democracy and Education - how pragmatic thinking always reflects a unity of the process of learning and experience, a unity of conceptual thought and situational consciousness: "To 'learn from experience' is to make a backward and forward connection between what we do to things and what we enjoy or suffer from things in consequence. Under such conditions, doing becomes a trying; an experiment with the world to find out what it is like; the undergoing becomes instruction - discovery of the connection of things.':" Such a process of learning byexperience, aimed at the discovery ofthe ofhowthings are connected is no arbitrary occurence, which needs to be continuously resurrected. On the contrary, it should be directed by what Wiarda called signposts - principles the contents of which will have to be constantly redetermined in the aforementioned learning process, yet which provide some sense of direction while keeping alive the necessary situational consciousness and sense of problematicity, which offers chances of articulation. Nor can the process of learning by experience be seen as an single event, since it necessarily concerns an intersubjective process, between the individuals involved, between the groups involved, and even between different nations and cultures. Only then legal thinking and adjudication may remain responsive to the problems encountered. In the words of the reknowned legal sociologists Nonet and Selznick this will "facilitate public purpose and build a spirit of self-correction into the governmental process". Responsive law indeed narrowly coincides with active learning as well as active citizenship in relation to formulating common 64 goals and means. More recently, ]ohan Galtung argued for global governance for and by global democracy.65 He implied that global governance means is seen as having global democracy both as a cause and an effect. Respect within the rule of law for human rights and general principles of law does not only constitute in this instance a political-philosopical condition. Both human rights and general principles of law will have to be freed from their natural law based idealist impotence and be released for public debate and discussion. The public debate metaphor or the metaphor of a common public realm - as reflected upon earlier - have been the fundamental metaphors of our views on democracy for a long time. They refer to

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the foundational institutions of democracy in which law fulfills a necessary role, with its conceptual structure, with its scheme of principles, and with its procedural framework. Then not only the dialogue between concerned and conflicting parties can be channeled and transformed into a terminable dispute, but also each procedurally canalised and finalised dialogue may provide a contribution to the 66

emergence ofnewideas.

A necessary precondition for such a legal approach, leading to pacification, to

learning by experience, to the discovery of how things are connected and to the emergence of new ideas, involves the characterisation of dispute resolution

procedures by a generally clear argumentative and rhetoric means. Rhetoric and argumentation are not to be interpreted here as mere skillfulness or as techniques of persuasion or misguidance. On the contrary, rhetoric and argumentation are to be understood as being necessary components of a pragmatic approach to law. This refers to disclosing a shared situational consciousness between the parties themselves and between parties and their context." Global governance and the rule of law can only uphold this interrelationship in a permanent and transparent process of dialogically established legal development. Accordingly, arguments and decisions should not be derived from transcending natural law, nor predicated on ontological mysteries of humanity and justice. They need on the contrary to be constantly reinterpreted and legitimised as many steps in an encompassing process of democratic learning from the experiences of conflict resolution," Notes: 1

2

3 4

5 6 7 8 9

10 11 12

Radbruch, G., (1950), Legal Philosophy (Translated by Kurt Wilk), Cambridge (Mass .), p. 60. "Nur die Kategorie des richtigen, gerechten Rechtes ist allgemeingiiltig, aber keine ihrer Anwendungen." Radbruch, G., (1963), Rechtsphilosophie, 6. Auflage, Stuttgart, P: 107. Dworkin, R., (1986), Lau/« Empire, Cambridge (Mass.)/London, p. 211. See: Verdross, A., (1964), VOlkerrecht, Wien, p.51. Berman, H.J., (1983), Uzw and Revolution. The Fonnation of the Western ugal Tradition, Cambridge (Mass.)/London. Also, for the didactic consequences of this development for continental legal education: Foque, R., (1997) , De Dialectiek van rechtsvorming en juristenvorming, in: Miscellanea [urisconsulto vero Dedicau: (Festschrift J.M. van Dunne), Deventer, pp. 41-63. Cassese, A., (1988), International Lau: in a Divided World, Oxford, p. 34. Friedmann, W., (1967), ugal TherJry, London, p. 114. Clearly raised in Grotius, DelureBelli acPacis, 1625. Bartelson, J., (1995), A GeneJlWgy of Sovereignty, Cambridge/New York/Melbourne, pp. 188-189. For the philosophical implications of this question: see Lyotard, J.-F., (1981), Discussions, ou : phraser 'apres Auschwitz', in: Ph. Lacoue-Labarthe and J.-L Nancy (dir.), Les fins de l'homme. A partir du travail de Jacques Derrida, Paris, pp. 283-315. More particularly regarding the meaning of law and legal rules, as well as the universality claims of a naturaIlaw concept 'after Auschwitz': pp. 313-314. See for the optimists' stance: Fukuyama, F., (1992), The EndofHistory andthe Last Man, New York; and the pessimists' stance: Huntington, S.P., (1996), The Clash ofCivilillltions, New York. Arendt, H., The Origins ofTotalitmianism (1951), London/New York, 1986, p. 265. Welzel, H., (1951), Naturrecht und materiaIe Gerechtigkeit, GOttingen, p. 48, referring to a continuity of medieval christian-theological naturaIlaw and modem rational natural law, as manifested in the great

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declarations on human and civil rights at the end of the eighteenth century. Of consequence here is the explicit ideal of rationality inherent to the Thomistic tradition (Aquinas), as well as the incarnation of individualist thinking in the more Franciscan scholastics (Occam, Seotus). On the continuity of medieval and modern natural law, see: Villey, M., (1975), lu formation dela pensee juridique moderne, Paris, p. 157. 13 Arendt, H., up.cit.,(note 11), p. 270. 14 Arendt, H., up.cit., (note 11), p. 269. 15 Legros, R, (1985),Arendt et les droits de l'homme, Etudes Phtrwmtnologiques, 2, p. 27-53. 16 For a critical analysis, see: Glastra van Loon, J.F., (1987), Hoe regelen wij ons handelen?, in: Glastra van Loon, J.F., De ijdelheid van beslissingen. Opstel1en overrecht, politieken ethiek, Leiden/Antwerpen, pp. 37-48. 17 Sieyes, E.J., (1982), Qu'est-ce queIeTiers ElIlt? (1789), Paris, p. 32. 18 Arendt, H., up.cit., (note 11), p. 291. 19 Descartes, R, Discourse on Method, in: The Philosophical Works of Descartes, edited and translated by Elisabety S. Haldane and Ross, G.T.R, Vol. 1, Cambridge, 1931, p. 101. 20 Taylor, Ch., (1992), Multiculturalism and 'The Politics of RecognitioT) ', edited by Gutmann, A, with commentary by Gutmann, A, Rockefeller,S., Walzer, M., Wolf,S., Princeton/New Jersey. Also: Touraine, A., (1992), Critique de la moderniti, Paris . For an in-depth philosophical-anthropological and ethical analysis of the problem of mutual recognition in the context of modem human rights, see: Honneth, A , (1995), The Struggle for Recognition. TheMoral Grammar ofSocial Conflicts,Cambridge/Oxford. 21 Arendt, H., up.cit., (note 11), p. 269. 22 A similar Cartesian -Image of man and the connected sp iritualist view of human rights, as essentially preceding any membership of a political community, seems again of pivotal significance in the apparent and influential revival of classic human rights discourse in the position taken by the Roman-Catholic church under [ohn-Paul II. For a captivating political and intellectual biography, see: Bernstein, C, and Politi, M., (1996), His Holiness - John Paul and the Hidden History of Our Time, New York. 23 Arendt, H., op.cit., (note 11), pp. 300-301. 24 Arendt, H., (1958), The Human Condition, Chicago/London. The following analysis of the public realm and its relevance for legal development were previously expressed in: Foque, R, (1992), De mimte van het rechi, Arnhem. 25 Legros, R, op.cit., (note 11), pp. 32·33. 26 See: Ellul, J., (1963), Sur l'artificialitl! du droit et Ie droit d'exception I + II, in: Archives de Philosophie du Droit, Tome 8, p. 21-33 and 1965,Tome 10, p. 191-207. 27 Hobbes, Th ., (1968), Leviathan (1651), edited with an Introduction by ca. MacPherson, Harnaondsworth/New York, p. 217. 28 Arendt, H., op.cit., (note 24), p. 57. 29 Arendt, H., (1963), On Revalution, London, p. 175. For the two meanings of freedom, see: Berlin, I., (1958), Two Concepts of Liberty, in: Berlin, I., (1982), Four ESSIl!Js on Liberty, Oxford/New York, pp. 118-172. The concept of liberty as a positive freedom more particularly, is a central anthropological theme in the republican views on government. See: Pettit, Ph., (1997), Republicanism. A Theory of Freedom and Government, Oxford/New York. 30 Arendt, H., The HumanCondition, up.cit., (note 24), p. 49. 31 Dworkin, R, o.c., p.211. 32 Foque, R and 't Hart, A.C., (1990), Instrumentaliteit en rechtsbescherming. Grondslagen van em strafrechtelijke waardendiscussie, Arnhem/Antwerpen, p. 129 and 405. For its relevance or the legitimization of government. see: Foque, R , (1995), Het recht van de verscheidenheid, in: de Vries, Chr. and Schuyt, K , (eds.), De open samenleuing en haar vrienden. In discussie met Jan Glastra van Loon, Meppel/Amsterdam, P: 145-169. 33 Lefort.Cl., (1981), L'image du corps et le totaliiarisme, in: Cl. Lefort, L'invention dtmocratique. Les limitesde la domination totalilllire, Paris; also: Lefort, a, (1992): Dialogue avec Pierre Clastres, in: Lefort, Cl., Ecrire. A /'epreuve du poliiique, Paris. 34 Glastra van Loon, J.F., (1959),Recht en menselijke natuur, in: Glastra van Loon, J.F., (1980), Deemheid van het handelen, Meppel/Amsterdam, p. 47. See also: Poque, R , (1986), De kwetsbare historiciteit van het recht, in: Nederlands Tijdschrift !lOOT RechtsfiIosofie en Rechtstheorie, 15,1, pp. 1-7. 35 See the stimulating PhD-thesis of Brus, M.M.T.A., (1995), Third Party Dispute Settlement in an Interdependent World. Developing a Theoretical Framework, Dordrecht/Boston/London, p. 128.

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36 Scholten, P., (1935), Rechlsbeginselen, in: Scholten, P., Ver7Jlmelde geschriftm, Deell, Zwolle, 1949, pp. 395412. 37 Scholten, P., op.cit., (note 36), p . 402: "In en achter ieder in welsvoorschriften en rechterlijke uilspraken belichaamd rechtssysteem liggen grondgedachten, waarvan de bijzondere bepalingen en beslissingen als uitwerkingen kunnen worden gedacht. Die gedachten zijn evenzeer deel van het recht als die voorschriften en uilspraken zelf," 38 Scholten, P., Ibidem: "aileen voor de systematiek van belang door in concrete bepalingen het gemeenschappelijke aan te wijzen''. 39 Scholten, P., op.cit., (note 36), p . 403: 'WeI kan gezegd worden, dat het beginsel is erkend (...) doch die erkenning kan slechts steun zijn voor wat al van elders vaslstaat: dat het beginsel zelf spreekt, tot handelen in zekere richting dwingt," 40 Wiarda, G.]., (1948), De wetenschap van het bestuurrecht en de spanning tussen gezag en gerechtigheid, in: Wiarda, G.]., (1986), Verspreide Geschriften VIIn G.J. Wiarda, 's Gravenhage, pp. 9-33. 41 Wiarda, G.]., (1952), Algemene beginselen van behoorlijk bestuur, in: Wiarda, G.]., IITidem, pp. 35-72. 42 Wiarda, G.]., op.cit., (note 41), pp. 54-55.: ''Rechlsbeginselen zijn geen normen welke rechtstreeks kunnen worden toegepast op een gegeven feitelijke situatie, zoals wettelijke voorschriften deze gemeenlijk inhouden, maar hoogstens wegwijzers, die ons bij de beoordeIing van die situatie in een bepaalde: richting wijzen. Mogelijk is zelfs, dat in een gegeven situatie twee of meer algemene beginselen van behoorlijk bestuur in verschillende richting wijzen, zodat de beslissing van de afweging dier beginselen afhankelijk is". 43 Theterm has been used by Czech phi/osopher Jan Patocka, Essais lufrttiques. Sur III philosophie del'histoire, Paris, 1981, p.69. 44 For an up-to-date analysis of this tradition, see: Foqu~,R, (1995), Droit et culture, in: G. VIIn de Louw (rid.), AUuvions 1, Lille, pp.l1-28. 45 Radbruch, G., Rechtsphi/osophie, op.cit., (note 1), Radbruch's work was Erik Suy's cherished handbook when he so spiritedly taught legal philosophy during the sixties to, among others, the author of the present contribution. 46 Foque, R , (1986), Over de kwetsbare historic:iteit van het recht, Nederlands Tijdschrift voor Rechtsfilosofie en Rechtstheorie, 15, pp. 1-7. 47 Marcie, R, (1969), Rechtsphi/osophie. Eine EinfiJhrung, Freiburg, p. 43. 48 Radbruch, G., Legal Phi/osophy, op.cit., (note 1), p. SO. 49 A similar line of thought can be found in private law theory at the tum of the century. See: Geny, F., (1919),Methodes d'interpretation etsources endroit priv{positif(2e ~.), Paris. SO Radbruch, G., op.cit., (note 1), p. 54. 51 Radbruch, G., op.cit.,(note 1), p . 60. 52 Recently Marcel Brus, in his Leiden PhD-thesis ThirdParty Dispute Settlement in an Interdependent World. Developing a Theoretical Framework (o.c.), very creatively and stimulatingly analysed Dworkin's approach in relation to a theoretical foundation for intemationallaw. 53 Dworkin, R, o.c., p. 211. 54 BraudeI,F., (1969), Histoire et sciences sociales; III longue duree, in: Brandel, F., Ecrits sur l'histoire, Paris, pp. 41-83. 55 Foqul!, R , (1994), De legitimatiecrisis van het publiek bestel, in: Chr. Balje (ed.), Vernieuwing en Emte Kamer. Een reflectie op hetopenbaar besiuur VIInuit de 'Chambre dereflexUm', Den Haag, pp. 79-105. 56 Foque.R, (1995), Hetgedoogbeleid en deopportuniteit VIIn derechtsstaat, in: Justitie1e Verkenningen, 21,8, pp. 48-64. 57 Foque, Rand 't Hart, A.c., op.cit. (note 32), also : Foqul!, R, De ruimie VIIn het recht, op.cit., (note 24). With regard to the question of the comparative and multicultura1 dimensions, one cannot but underscore the empiric, comparative and typificating legal analysis, as inaugurated by Montesquieu. See: Foque, R., Rechtsstatelijke vernieuwing. Een rechtsfilosofisch essay, in Kuypers, P., Foque, R. and Frissen, P., (1993), Delege plek VIIn demacht. Over bestuurlijke vernieuwing en de veranderende 101 VIIn depolitiek, Amsterdam, pp.

18-44. 58 Foqul!, R and Zijderveld, A.C., (1994), De kwetsbare rechtsstaat. Over de ruimte van recht en macht in een pluralistische cultuur, in: Poque, R, etal. (eds.), Geintegreerde rechtswetenschap, Amhem, pp. 291-316.

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59 Dewey, J., (1997), Democracy and Education. An Introduction to the Philosophy of Education (1916), New YorkLondon/Toronto, p. 2l. 60 Dewey, J., up.cit., (note 59),p. 2l. 61 See Doig, J.W., Hargrove, E.C, (1990), Leadership and Political Analysis, in: Doig and Hargrove, Leadership and Innovation. Entrepreneurs in Government, Baltimore/London, pp. 1-22. American president Bill Clinton used the metaphor of the free (free from legal regulation) entrepreneur as the central principle for his politics of governmental renovation. See: Osborne, D., Gaebler, T., (1992), Reinventing Governent. How the Entrepreneurial Spirit is Transforming the Public Sector, New York, and the accordingly developed government report by vice-president Al Gore, From Red Tape to Result. Creating a Government that Works Better and Costs Less, Washington-DC, september 1993. 62 Van Gerven,W., (1983), AIgemene beginselen vanbehoorlijk handelen, Antwerpen/BrusseI. 63 Dewey, J., up.cit., (note 59), P: 140. 64 Nonet, Ph. and Selznick, Ph., (1978), Laur and Society in Transition . Toward Responsive Laui, New York/London, p. 113. 65 Galtung, J., (1995), Global Governance for and by Global Democracy, in: Issues in Global Governance. Papers written for theCommission on Global Governance, London/The Hague/Boston, pp. 195-215. 66 Galtung, J., up.cit., (note 65),p. 213. 67 Meyer, M., (1995), Of Prob1ematology. Philosophy, Science andlAnguage, translated by Jamison, D. and Hart, A., Chicago/London. See on the concept of 'deliberative democracy' in legal reasoning: Sunstein, CR. , (1993), The Partial Constitution, Cambridge (Mass.I/London, pp.133-145 and pp.162-194. 68 W. van Gerven's arguments in connection with recent events in Belgium with regard to the necessity of transparent, justified adjudication, are equally relevant with regard to legal development from a global perspective. See: van Gerven, W., (1997-1998), Creatieve rechtspraak?, Rechtskundig Weekblad, pp. 209-223. See for a philosophical reflection on the political relevance of cultivating and cultivated citizenship: Nussbaum, M.C, (1997), Cultivating Humanity. A Classical Defense of Reform in Liberal Education, Cambridge (Mass.)/London.

NEW REGIONALISM IN A CHANGING WORLD ORDER Winfried Lang I. A New Life for Regionalism? The end of World War II was approaching, when Friedrich Hayek reflected on the reasons for the failure of the League of Nations. The regional option appeared to be a valid choice: "The comparatively close association which a federal union represents will not at the first be practicable beyond perhaps even as narrow a region as part of Western Europe, though it may be possible gradually to extend it".! While he admitted that war could still be possible between such regional federations and agreed that some larger and looser association - a new League of Nations - should be relied upon, he stressed that "such other organization should not form an obstacle to a closer association of those countries which are more similar in their civilization, outlook and standards". Thus, in a nutshell the tension between the global organization - the future United Nations - and regional associations was clearly exposed as well as some of the necessary criteria for those regional "associations". More than twenty years later an essay in Time-Magazine reviewed situations mainly in Asia and Latin America and, referring to Ernst Haas, qualified such military, political or economic groupings as "islands of hope".' Today, another thirty years later it may be useful to undertake some kind of stocktaking. Was the vision of the forties realistic? Did the hopes of the sixties come true? With the end of the 20th century approaching, it is useful to look back, especially in a paper which is intended to honour an eminent lawyer, whose country remains deeply involved in a debate on regionalism - although this article is not focussing on national or subnational regionalism but on regionalisms that cut well across and act beyond the borders of traditional nation-states. Regionalism as a concept for organizing inter-state relations has several origins. On the one hand it is rooted in the thinking of so-called federalists, who believe that the model of a more or less fair distribution of powers and competences, as it exists in certain federal states, could be of some help in relations between nation-states. They are convinced that any spatial distribution of powers at a level below a global organization (subsidiarity) could facilitate the peaceful intercourse of people, and somehow restrain the impact of power politics and the threat of war. On the other hand neofunctionalist theory, which learned from the experience of integration in Europe in the fifties, conceptualized regionalism as the incremental creation of regional institutions, which were supposed to meet the expectations of national and transnational stakeholders, among them mainly economic actors.' Such actors and interest groups were expected to transfer their support and loyalty from national institutions (governments) to regional institutions insofar as their interests were adequately met at the higher level. Had their expectations been 45

K. WellelU [ed.},InternatioPJal Law: Theory and Practice. 45-6(l. © 1998 KluwerLaw International. Printed in the Netherlands.

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satisfied in the original area of a specific regional activity, the scope of that area was likely to expand by means of the so-called "spill-over"-effect, which meant that more and more activities were integrated and conducted as a common endeavour. The main motivations for this continuously broadening process were economic and social advantages; the theory of nee-functionalism even professed that some automaticity prevailed in the ever growing powers of regional institutions. The earlier versions of this theory assigned a relatively minor role to national governments and almost neglected the impact of the external situation or political environment on the regional process. Whereas integration processes in Europe reflected to some extent the insights and expectations of neo-functionalist theory most endeavours in other parts of the world widely differed from such expectations. Among the reasons for this were the lack of complementary production patterns - thus little trade with goods and services within the respective region - as well as post-colonial dependence, which gave priority to trade with industrialized states over trade with neighbours in the same Third World region .' As many of these countries had acquired statehood at a relatively late stage, they also were reluctant to abandon it too quickly in favour of regional institutions. The level of European integration was also high as a consequence of the Cold War. Beyond the confines of Europe, the Cold War had the opposite effect on regional organizations: client states of one or the other superpower were undermining the autonomy, solidarity and common endeavours of regional organizations; whenever one of the superpowers was too closely allied to a local government the respective regional organization became almost paralyzed and could rarely engage itself in any kind of independent action. Regionalism gained some new visibility as soon as the superpower competition had disappeared.' Suddenly the Security Council of the United Nations became a center of action. However, as the means at the disposal of the United Nations remained meagre, it was obliged to call upon regional bodies to do the field work. A new philosophy emerged due to the efforts of Secretary General Boutros Boutros-Ghali, also an eminent scholar in the field of regionalism for many years. Organizations such as NATO or the WEU, frequently bedevilled as remnants of the Cold War, were invited to attend meetings of "regional organizations" in New York. As a consequence, the traditional dividing line between organizations of collective defense and organizations of collective security became increasingly blurred. Regionalism was also considered an important challenge to endeavours aiming at fully implementing the mulitlateral global trading system.' Whereas the process of trade liberalization was pursued in the context of the Uruguay Round (GAm, and even extended to new areas such as services and intellectual property rights, new regional processes of cooperation and integration were launched, such as the North American Free Trade Association (NAFTA). Furthermore the process of economic integration in Europe is now about to incorporate former Communist countries, despite the fact that these countries are passing through painful periods of transition.

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Because economic integration does not necessarily precede political/security integration - a challenge to the nee-functional theory - most of the former Communist countries also applied for membership to NATO, who had been their enemy for at least forty years . If their demands were met, this might change the very nature of NATO (a military alliance or collective defense organization), which was suddenly confronted with the fact that it had lost its main opponent and its original "raison d'etre". At the end of the 20th century regionalism is faced with a new situation: security considerations become less salient, economic development remains a major challenge, new threats have to be met, such as environmental risks, migration, drugs-trafficking, terrorism etc. II. Regionalism and the United Nations On 1 August 1994 a "Meeting with Regional Organizations" took place in New York. The following organizations were invited by the Secretary General : the Commonwealth, the Commonwealth of Independent States, the Conference on Security and Cooperation in Europe (CSCE), the Economic Community of West-African States (ECOWAS), the European Commission, the League of Arab States, the North Atlantic Treaty Organization (NATO), the Organization of African Unity (OAU), the Organization of American States (OAS), the Organization of the Islamic Conference, the Western European Union (WEU). This list of invitees did not reflect the traditional tendency to clearly distinguish between regional organizations within the meaning of Chapter VIII of the Charter, organizations of collective security acting under the close surveillance of the Security Council, and other organizations acting under Article 51 of the Charter, organizations who are supposed to act outside the UN; such organizations exercise the right of collective self-defense of their members as enshrined in customary international law.' This blurring of traditional dividing lines between collective defence and collective security had special significance in Europe.' On the one hand the oseE declared itself a regional organization within the meaning of Chapter VIII (collective security). On the other hand questions were posed as to what extent "alliances" such as NATO and the WEU were not merely instruments of collective defense but were also regional organizations within the meaning of Chapter VIII.9 The basic treaties of both "alliances" refer to Article 51 of the Charter as their major foundation. However, after the Cold War both organizations were faced with a new reality: for example the WEU is planning new activities well beyond its initial purpose, the so-called Petersberg-Missions (humanitarian assistance, peace-keeping, peace-making), and NATO has been instrumental in implementing the Dayton Accord for Bosnia-Herzegowina, an activity not only outside its geographical scope but also well beyond its duty of "collective defense if an armed attack occurs" (Art. 51). For both organizations the original threat which caused them to come into existence has vanished. Their founders chose Article 51 as a legal basis so they would not be blocked by

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Security Council action or in-action. Against the background of recent proposals to merge the European Union and WEU the latter has become a special case. Despite clear references to Article 51 in its basic instrument (the Brussels Treaty), it was the Parliament of Belgium, which qualified the WEU as a Chapter VIII organization, when it ratified the revised Brussels Treaty. Again in late 1996, the Belgian Chairman of the WEU-Council called the WEU a Chapter VIII organization and was of the view that it should establish a permanent mission with the UN in New York.1O Another indication of the disappearance of traditional distinctions was the ruling by the German Constitutional Court of 12 July 1994, in which it decided that NATO and the WEU should be considered systems of collective security." If this interpretation is gaining ground among the other member-states of either organization, the notion of regionalism may have developed new characteristics. Over fifty years the scholarly debate which differentiated between regional organizations of collective defense and regional organizations of collective security was dominated by the mainstream so-called "separation theory", which highlighted the gap between these two types of regional organizations. A minority supported the "equalization theory ", which did not see any major merit in this distinction." In the light of the above mentioned political evolution the latter theory is again at the forefront. Article 51 was included in the Charter mainly in response to a Latin American request who did not wish to see outside powers interfering in their hemispheric security system. Such interference could well have occurred through actions of the Security Council and its impact on specific regional organizations under Chapter VIII. By including Article 51 into the Charter the autonomy of the Latin American system was preserved to a certain extent. The majority view concluded that organizations established under Chapter VIII were only entitled to secure peace among their members and not against agression from an outsider (which would be dealt with by Article 51 type organizations) - and that they should have an efficient system of settling disputes between their members. Furthermore any action that required the use of force by such organizations would need to be approved in advance by the Security Council, who could also employ these organizations to implement specific UN-measures. Stringent reporting requirements strengthened the link between the UN and the respective regional organization. As the Cold War became a permanent feature of international relations it was self-evident that Western "alliances", which considered the Soviet Union to be their main enemy, qualified themselves as organizations under Article 51, as they wanted to avoid any Soviet interference in their defense policy. Thus Article 51, which had been designed to ensure the autonomy of an already existing regional system, became the legal basis for new collective defense organizations, mainly NATO and the WEU. Traditionally only the Arab League, the Organization of African Unity (OAU) and the Organization of American States (OAS), were considered to be Chapter VIII organizations, (the OSCE has been added to this list more recently, obtaining this status by self-election).

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In the early nineties the United Nations blurred these dividing lines of the past because it had to rely on regional organizations to meet its own obligations. The Agenda for Peace clearly demonstrated, that the UN could not satisfy all security demands which emerged after the end of the Cold War. Based on experience gained in some regional conflicts, and against the background of serious financial difficulties as well as shortages of personnel, the Secretary General urged a strengthening of the regional approach to restore and maintain peace. The highlights of this new approach were the IFOR and SFORoperations of NATO in former Yugoslavia. These operations did not only highlight the new function of regionalism but also had an affect on the very nature of NATO as a "collective defense organization", in that it is now supposed to perform "collective security" tasks, that go well beyond its original purpose." The same San Francisco-Conference of 1945 which strengthened the regional dimension of the new world organization by inserting Article 51, decided in the negative when the question arose as to whether to include in the Charter a provision for regional arrangements with regard to economic and social matters." Later this "lacuna" was partly filled by means of the so-called regional Economic Commissions, which function within the context of the Economic and Social Council." But these commissions never attained any meaningful level of autonomy vis-a-vis the United Nations and could not compete with those economic organizations, which were established by local governments themselves in order to improve intraregional trade, to reduce external dependence, to attract foreign investment etc. Regionalism was also neglected by the United Nations in another important area: human rights. On the one hand there exist regimes at the global level (Commission on Human Rights, two Covenants and numerous specialized conventions)", while on the other hand there are several regional mechanisms and procedures, sometimes with a very high degree of efficiency. However, no real links exist between these different levels of action in favour of human rights. Similar criticism should be voiced with respect to disarmament; at both the regional and the global level activities were pursued as if they were functioning on two separate tracks." This should not diminish the importance of global treaties such as the Non-Proliferation Treaty, the Convention on Biological and Bacteriological Weapons, the Chemical Weapons Convention or the Comprehensive Test Ban Treaty. However, regional activities such as the Tlatelolco Treaty (nuclear weapons free zone in Latin America) or the various treaties devoted to the security situation in and around Europe, such as START I and II, Conventional Forces in Europe (CFE), Open Skies etc. had little or almost no link to the United Nations.

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III. Regionalism in Europe

Following the neo-functionalist theory, this author has developed six elements of regionalism, which can be used as yardsticks for measuring the movement of regional processes towards more or less integration:" l)institution-building; 2)levels of economic development; 3)a feeling of togetherness (psychological); 4)similarity of political regimes; 5)communications and transactions; 6)external political environment. These criteria can be measured on three organizational levels: a high and continental level, such as the CSCE/OSCE; a medium level, namely the European Union/EFfA or their former Eastern competitor CMEA; and a lower level at which several efforts towards transboundary regionalism and subnational regionalism take place." As this last variant was excluded from this paper from the outset it will not be pursued further. The CSCE/OSCE has become by self-election a "regional arrangment" within the meaning of Chapter VIII of the UN-Charter. This process/institution challenges the very notion of a "region", because it covers the full stretch from Vancouver to Wladiwostok. 20 As a permanent comprehensive negotiation process the CSCE/OSCE has spawned numerous subsidiary processes/institutions in areas such as human rights, minorities or disarmament, but it remains a purely intergovernmental undertaking with no authority of its own. However, it has acquired some legitimacy to authorize action taken by other bodies, to elaborate "soft-Iaw"-rules regulating interstate behaviour, and to involve itself in crisis-prevention and crisis-managment exercises. It deserves praise for injecting the human rights issue into the EastWest debate during the Cold War and for encouraging dissidents in the East to oppose seemingly powerful Communist governments. Levels of economic development are still at variance among its members and differences among them are so great that no real integrative action is to be expected . With the exception of the human rights aspect this process did not trigger broad expectations in public opinion. Since the end of the Cold War - also brought about by the human rights concerns - the political regimes in the area have become increasingly similar; although this should strengthen movement towards integration, there is still a long way to go before full democracy is established in many societies which have never been used to it. According to traditional neo-functionalist doctrine the bulk of integration takes place in the realm of communications and transactions between participating units - the more communications and transactions occur the more the regional process advances towards the goal of integration. Thus, channels of communication and transactions should be kept open and enlarged to the maximum extent possible. There has been some progress in this field, especially as a consequence of the new agreements between former Communist countries and the EU as well as EFfA, but this has not yet brought about a self-sustaining process that will lead to real integration." The impact of the political environment (other international organizations, great powers influence etc.) on processes of regional integration or

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disintegration were largely neglected by early neo-functionalist theory . As the CSCE-process included from the outset the so-called superpowers, external pressures were internalized and became the daily chore of negotiators. Therefore external relations played a minor role for CSCE/OSCE, except more recently in its new role as a partner of the UN. Furthermore this process/institution was at times suggested as a model for similar efforts in East Asia and in the Middle East ("external echoing"). However, none of these ideas ever materialized. Substantial movement towards integration or disintegration took place at the so-called "medium level").22 Here the end of the Cold War facilitated and even triggered two contradictory trends: Eastern and Central Europe_witnessed a process of total disintegration; regional economic organizations such as the CMEA disappeared at the same time as its military counterpart the Warzaw Pact," The lesson was clear: once the hegemon ceased to provide incentives to remain and was even unable to produce disincentives for those who wished to leave, the entire structure was doomed to failure." Organizations that were built under Soviet pressure as well as the meagre "advantages" of so-called "socialist integration" were swept away in the shortest possible time. Institutions linking Communist states had always been weak, except for party structures, levels of economic development varied and even the psychological factor was weak because apart from a narrow political class at the top, no feeling of togetherness ever developed. Certainly the political regimes were similar and even identical, but this led even faster to the downfall because the leading player - due to its own weakness - was unable to prevent substantial change. The system of communications and transactions was quite developed within the "socialist system" but it was biased in favour of the hegemon and a few of the more industrialized participants. Finally, it was the political environment as a whole that did not favour the maintenance of the Communist system: the arms race between East and West was linked to an ever widening technological gap which contributed to a growing economic burden and to a feeling of backwardness, which public opinion was no longer willing to bear. Because Communism as an economic system had failed, "socialist integration" also lost its "raison d'etre". Participants in that "failed" system turned as a first step to internal transition - economic, political, ideological - and later to the quickest possible rapprochement with the successful integration process in Western Europe. Frequently NATO has been called the most successful alliance, because it caused its enemy to disappear by its mere existence. The same is true of the European Union - and its various precursors since the early fifties. Integration in Western Europe is the most successful regional process in history . It has become known as "high-tech integration?" or "deep integration"." If one compares the real life situations at the end of the sixties with those of the nineties one recognizes the following: the scope of integration - in respect of policy areas covered and regulated, but also in terms of membership - has radically increased although internal cohesion was sometimes at risk. Its

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institutions have grown well beyond the threshold of the intergovernmental model: the impact of court-rulings, and the role of majority voting in the Council, the initiating and implementing function of the Commission, the role of the parliament have brought about something entirely new. Thus, considering the institutional movement towards integration, one has to acknowledge steady progress - although the closer this process moves to the core of statehood, namely security and foreign policy, the slower and more difficult advances become. Levels of economic development, the second element, are still variable in some instances, but a levelling of differences mainly takes place as a consequence of the intervention of various funds. Development gaps are not really jeopardizing the process of integration anywhere which is also due to a spirit of solidarity, according to which the richer countries assume - without too much reluctance- their status as net-contributors. In the domain of psychology - a feeling of togetherness - some progress has been made: public opinion sees integration as a fact of life; referenda that took place in recent candidate countries such as Austria, Finland and Sweden signalled a largely positive evaluation of integration. The similarity of political regimes is no longer a problem - all countries of the Union are well established democracies. As regards the integration-factor "communications-transactions" it is evident that internal exchanges largely outpace external exchanges. Finally, as regards the political environment, namely the "outside world", the European Union has become a chief player in world politics, be it in relations with other regional bodies such as ASEAN, or within the G-7, the group of most important industrialized nations, or GAIT/WTO, the multilateral trading system . For many regional processes outside Europe, the Union and its predecessors were and still are a model to be followed. Although the success of integration efforts in the Third World has been mitigated, such a leading role remains important. In the United Nations the European Union tries to speak with one voice and carries at the same time the weight of all its members, which enhances its impact in various fora, be they political, economic or environmental. Furthermore the Union has become an attraction to other European countries, especially the former Communist states. But the Union should not neglect challenges and weaknesses. In the recent past one major challenge especially from the psychological perspective has been German reunification, which led (at least in economic terms) to a further strengthening of the already most important partner." Reunification also meant re-integration for Germany; it was accompanied by considerable sacrifices, which had to be made to adjust the economic situation in the Eastern part, the territory of the former GDR. Regional geography in Europe has also changed because EFTA was reduced to a very small organization as the consequence of the departures of Austria, Finland and Sweden, who joined the Union. But these "neutral" members posed a serious challenge to the Union, because the number of non-NATO-partners in the Union suddenly increased from one to four, which was not likely to make

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decision-making in the area of Common Foreign and Security Policy much easier. However, even without these newcomers the field of joint action in foreign policy and security matters remains a major weakness. The automaticity of "spill-over" expansion, suggested by the early neo-functionalist theory, has worked to some extent in the economic and other welfare areas, but there is nothing automatic when it comes to the core of sovereignty, when the traditional prerogatives of governments, as guardians of national interests, are at stake. Another limit to further integration has been purposely introduced, the principle of subsidiarity; by restricting the powers of regional institutions to matters which cannot be handled in a much better way at a lower level, a break has been put on the general tendency towards centralization. Regionalism in Europe is not restricted to the European Union," The establishment of a Committee of Regions, which has a consultative status within the Union, brought about something which may be called "regionalism within regionalism"." Much of the future role of this Committee will depend on the strength of those sub-national units/regions/provinces/Uinder, which already enjoy in the context of their respective state a certain degree of autonomy. Due to the on-going shift of competences towards the center of Europe in Brussels, these sub-national regions have already lost many of their powers to the European institutions. By engaging themselves in these European institutions the subnational units endeavoured to protect to some extent their specific interests in a new and different framework. Before the Committee was established, regional policy in European integration primarily meant measures of support for the less developed regions within the member-states; these efforts to arrive at similar levels of economic development were based largely on the priorities of the respective national capitals, and did little to contribute to the emergence of a "Europe of the Regions"." Regionalism in Europe also means cooperation at the local level between entities belonging to different states: transboundary regionalism has developed throughout Europe, but has not been linked to the broader process of European integration," One of the earliest examples was the "Arbeitsgemeinschaft Alpen" encompassing parts of Austria, Germany, Italy and Switzerland. Others developed in the Pyrenees between French and Spanish regions, or in the Jura area between French and Swiss authorities. The "Regio Basiliensis"effort seems to be one of the most dynamic ones; the Euregio Scheldemond is another effort towards close cooperation between authorities in Belgium and the Netherlands. The Association of European Border Regions reflects the broad spectrum of activities that developed throughout the last decades. These regional activities include a broad range of functions that cover land planning and environmental protection, traffic problems and migration, youth exchanges as well as common cultural projects. But nowhere could these transboundary activities emancipate themselves from the control of the respective central governments; the latter remain indispensable as regards the legal framework for such activities as well as their financial basis." Before concluding this overview a brief reference should be made to a concept called "super-region"," Such regions are defined as "new blocs of

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economic and cultural cohesion" and among them the following constructs have been mentioned: Latin Crescent, Baltic League, Atlantic Coast, Mitteleuropa, Alpine Are, Danube Basin etc. We will see in the future whether these "super-regions" remain a mental construct or are likely to become a prominent feature of the European landscape. To the extent that existing and new economic poles exert attraction forces, political borders are likely to lose their importance. IV. Regionalism beyond Europe Regional organizations of the economic or of the political (security) type exist in most parts of the world - Africa, Asia and Latin America. Whereas no significant evolution can be recognized in Africa, (except institutional stagnation as being a major feature), some significant developments occurred in Latin America/Western Hemisphere and in Southeast Asia during recent years ." In "the Americas", which includes not only Latin America but also the United States and Canada, regional integration took a leap forward," Some even distinguish between the old regionalism of the sixties and seventies and the new regionalism of the recent past. The economic breakdown of many countries of that region during the eighties is considered by some observers as the real watershed, in economic as well as in political terms. Before the eighties the economic strategy of many Latin-American countries was industrialization by import substitution, which implied protectionist barriers and benefits that mainly went to the bigger economies in the region: increasing indebtedness was another feature . Import substitution was the ideology recommended for several decades by the Economic Commission for Latin America (ECLA). The political situation also changed in the light of the weakness of the Soviet Union and its final demise . As a consequence Communism ceased to be perceived as a real threat to the societies of the region. This allowed many elites to rely less on authoritarian regimes and to favour democratically elected governments. The first institutional innovation was the creation of MERCOSUR by means of an Integration Act signed between Argentina and Brazil in 1986.36 In 1990 both countries agreed to a programme of tariff reduction and to the abolition of nontariff barriers. In 1995 a customs union became operational; however, this common external tariff would be abandoned in case of any future hemispheric free-trade project, or when members of MERCOSUR (now also including Uruguay and Paraguay) were to join NAFTA. This latter organization comprises 2 highly industrialized states (USA, Canada) and one developing or semi-industrialized country (Mexico) - a rare assymetric structure." Its creation may be traced back to an important policy shift in Mexico, when it abandoned traditional import substitution in favour of "open regionalism". This means that for the sake of growth the government encourages the influx of foreign investment and supports liberalization in most areas of business. The US interest in joining NAFTA was manifold: the opening

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of the huge Mexican market for US products, less unemployment in Mexico through investments from abroad and thus less incentives for illegal immigration from Mexico into the US.38 Canada joined this process, in order not to remain isolated. It should be noted that the main motivation for all sides was economic. Although side-effects in the fields of environment, labor and drug trafficking etc. played some role, no important political project preceded NAFTA as was the case in Europe. This is one of the reasons why the institutional set-up is rather loose and does not have any of the "suprana tional" elements of European integration. It remains to be seen whether there is still some room for expanding this organization further towards the South. Some are afraid of the possible negative effects that this huge economic enterprise may have on smaller regional or subregional endeavours linking the economies of Central America and the Carribean (CACM, CARICOM). As the Andean Pact has split into subgroups, Chili is considered as a potential candidate for NAFfA. Looking back to earlier integration efforts from the 1960's to the 1980's, one has to admit that most of these projects proved unsuccessful, because they were unable to eliminate intra-regional trade barriers, and to improve channels of communication and transactions. Much of this failure can be traced back to a negative policy approach - import substitution and hostility towards foreign investment - and to efforts focusing on bureaucratic institution-building, which did not match political reality. Therefore institutions needed to become less and less formalistic: NAFTA bears witness to this approach in that the Secretariat is decentralized and decisions are taken by consensus and cannot overrule national policy-making. Such institutional modesty could well be a precursor for success in the long history of the proliferation of Latin-American integration mechanisms. Before finally turning to regionalism in Asia and in particular South East Asia attention should be drawn to a new theoretical approach, which assumes that nation-states have already lost their role as meaningful units for participation in the global economy," According to this theory so-called "region states" - geographical units like northern Italy or the Osaka and Kansai region mayor may not fall within the borders of a particular nation-state, they are considered to be powerful engines for economic development, they are supposed to welcome foreign investment and to constitute effective ports of entry to the global economy, their goal is not the protection of their people but the production of wealth for their people. It remains to be seen, if such "region states", comparable to the traditional development poles, are likely to replace the old nation-state. The questions not yet settled read as follows: Who will take care of the people living outside these centers of prosperity? Who will take care of security needs? Who will accomodate other issues on the international agenda, such as the protection of human rights, minorities, the environment etc.? The region-state may be helpful to settle economic problems, but man is not only an economic, but mainly a social "animal". The end of the Cold War has also caused a reshuffling of the geopolitical landscape of Asia - a continent, which due to its high degree of diversity has

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never been covered by a regional arrangment within the meaning of Chapter VIII of the Charter. Nothing similar to the OAS or the OAU has seriously been tried except for some lukewarm proposals by the former Soviet Union to establish an institution along the lines of the CSCE.40 Leaving aside the Gulf Cooperation Council the only regional process that deserves special attention not only for its survival but also for its efforts to move ahead is ASEAN which celebrated its 30th birthday recently." It assembles the dynamic and competitive economies of the region and aims now to establish a free trade zone; it remains to be seen to what extent this undertaking - postponed several times - will be more successful than previous integration efforts. The institutional outfit remains weak and purely intergovernmental consensus continues to be the basis for decision-making. But ASEAN-countries have become used to speak with one voice especially in global bodies such as GAIT jWTO and in dialogue with other regional organizations such as the European Union. Thus, ASEAN may already be considered an actor in its own right; this applies not only to economic issues, but also to questions relating to refugee policy (Cambodia), protection of the environment or human rights, where ASEAN has developed a specific identity, which differs from European and North American positions. In the field of security policy the ASEAN Regional Forum (ARF), (established in 1994 and comprising in addition to the foreign ministers of ASEAN colleagues from Australia, China, Japan, Canada, Republic of Korea, Laos, New Zealand, Russia, USA, Vietnam and the European Union) constitutes a unique effort towards consultation and the coordination of several goals: 1) to fill the vacuum caused by the disappearance of the East-Westconflict and the weakening of the security commitment of the US to the region; 2) to bridge the gap between the two regional leaders, namely China and Japan; 3) to accomodate tensions among ASEAN members, which can be traced back to old conflicts concerning boundaries, minorities etc. Neutrality, a concept of the Cold War period (ZOPFAN, Zone of Peace, Freedom and Neutrality), has become politically meaningless in Asia as it has also become in Europe. As a regional process, that would meet the expectations of neo-functionalist theory, ASEAN is still far removed from the integrationist track: its institutions remain weak, obstacles to free communication and transactions still exist, public awareness and identification with the process remain low; only the exposure to outside attention and dialogue are high. ASEAN continues to be one of the most visible regional processes of the South. This may be due to its very specific configuration and location but may also be due to the fact that most of its members are no longer developing countries in the classical sense. In this respect some similarity with new processes in the Western Hemisphere can easily be discerned. Comparing these developments it may be concluded that regional processes of the integrationist type are likely to succeed to the extent that their participants share a relatively advanced degree of economic development, which facilitates a division of labour across traditional boundaries. This in tum creates a feeling that everybody will benefit from

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increasingly closer cooperation, that may eventually turn into real and full integration.

v. Conclusions The very nature of world order is change. Such changes do not occur in an orderly fashion or in a foreseeable way that can easily be forecast. Changes occur in the form of an erratic sequence of events as a result of decisions by leaders and governments, but also as a result of developments that no single actor has an impact on -an example of this is the emergence of the environmental issue in international relations . Since the writings of Friedrich Hayek in 1944 major changes have taken place: a new world order was established in the immediate aftermath of World War II; this order with a global aspiration (United Nations) was seriously challenged by the East-West-Conflict, the Middle East Conflict following the creation of the state of Israel, and the process of decolonization triggered by the independence of huge countries, such as India and Pakistan; furthermore China as an actor in its own right complicated the relatively simple East-Westequation. The end of the so-called Cold War did not bring about an end to history, but it did have an impact on regional situations in Europe, Africa, Asia, the Middle East and Latin-America in several ways. The demise of Communism had its most immediate effect in Europe, especially regarding the end of regional organizations which were under Soviet control. But the end of the Cold War also modified the situation in the Middle East to the extent that it weakened former Soviet client forces in their confrontation with Israel. In Africa the birth of a multiracial South Africa was greatly helped by the disappearance of Soviet interventionism, a threat which was upheld for many years by client states in the region. This threat also lost its revolutionary influence in Latin-America, and allowed for a significant movement towards full democracy and market-oriented economies in that region . In Asia the end of the Cold War contributed to more important roles for traditional leaders such as China and Japan. Talking about "new regionalism" means that after the end of the Cold War a new interest in the regionalist option emerged in the early nineties. A new thrust towards regionalism is apparent when looking at the eagerness of former Communist states in Europe to join the European Union and NATO. A new thrust also developed in the Americas, where the old protectionist strategy of import substitution was replaced by an open regionalism, which calls for unrestricted market access and the free influx of foreign investments. New regionalism needs to compete with globalism, the symbol of which is the World Trade Organization, an institution and process with which developing countries easily associated, where they had been reluctant in their relationship with the old GATT. Regionalism also became a tool for the United Nations, which could not meet all the challenges with which it was confronted following the end of the Cold War.

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It is certainly not an easy choice between regionalism and globalism; much depends on the adequacy of policies and actions at the respective level of action. To what extent can concrete problems be solved and complex situations managed at these levels? Subsidiarity has been hailed as the most adequate response to too much "Community action" in the context of European integration: community action should only take place, if it produces better results than action by national governments would. But subsidiarity is a coin with two sides - its functions are not restricted to relations between national governments and regional institutions, it also has a role to play in the relations between the latter and global institutions. Regionalism should prevail if at the global or national levels no better solutions are likely to be achieved . This threetier approach to world order helps to accomodate the requirements of national autonomy and the need for common endeavours above that level. Security, economic goals and environmental threats demand action at all three levels. None of these challenges can be met at one single level only. Thus, close interaction between the three levels remains an important recipe for managing international relations.

Notes: Hayek, E, (1944)The Road to Serfdom, Chicago (University of Chicago Press), 260. Time, February 3, 1967. On neofunctionalist theory and related concepts see Lang, W., (1982) Derinternationale Regionalismus Integration und Desintegration von Staatenbeziehungen in weltweiter Verflechtung, Wien (Springer), pp . 518 (see also this volume for literature on regionalism up to the early eighties) . 4 Esterbauer, E, - Lang, W., (1988), Integration und Kooperation in Nord und Sud, Bern (Lang) 1988, pp . 59145. 5 See recent literature such as Fawcett, L.- Hurrell, A., (1995)(ed.), Regionalism in World Politics- Regional Organization and International Order, Oxford (Oxford University Press) and Gamble, A. - Payne, A.,(1996) Regionalism and World Order, New York (St. Martins Press) or Hettne, B. (1994)The regi ona l factor in formation of a new world ord er, in: Yoshikazu Sakamoto (ed.), Global Transformation Challenges to theStateSystem, United Nations University Press 1994, pp. 134-166. 6 For a discussion of this issue area see World Trade Organization, Regionalism and the World Trading System, Geneve 1995; OECD, Regional Integration and the Multilateral Trading System, Synergy and Divergence, Paris 1995; Preusse, H.(1994), Regional Integration in the Nineties: Stimulation or Threat to the Mulitiateral Trading System? Journal of World Trade, August 1994 (vol. 28/4), pp . 147-164; And erson, K -Blackhurst, R. (1993) (ed .), Regional Integration and the Global Trading System, New York (Harvester-Wheatsheaf): Jaime de Melo-Arvind Panagariya, (1993) New dimensions in regional integration, Cambridge (Cambridge University Press) . 7 An early presentation of the problems involved may be found in Kelsen, H. (1950);The lAw of the United Nations, London (Stevens), pp. 319-328; and for a recent commentary see Hummer/Schweitzer (1991) in B. Simma (Hrsg.): Charta derVereinten Naiionen, Miinchen (Beck) 1991, pp. 636-70l. 8 Lang, W. (1996); Verlangt d ie Sicherheit Europas nach einer Renaissance des internationalen Regionalismus? in: Neuhold, H.-Simma, B. (1996) (Hrsg .), Neues europdisches Viilkerrecht nachdem Ende des Ost-West-Konfliktes ? Baden-Baden (Nom os), pp. 169-172. 9 Wolfrum, R. Europaische Regionalorganisationen, in: Neuhold-Sirnma (Hrsg.), op .cit.Jnote 8), pp . 147-168. 10 Lang , W. (1996) Sind WEU und NATO noch Allianzen ? Osterr. Jahrbuch fUr Internationale Politik; Wien . (Bohlau), p. 11. 11 Quoted in Lang, op .cit(note 10), p. 12. 12 For a broad presentation of this debate see Walter, C. (1995) Vereinte Nationen und Regionalorganisationen, Heidelberg (Springer), pp . 59-90 and p. 370; among the prominent 1 2 3

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representatives of the separation theory see Pernice, R. (1972) Die Sicherung des Weltfriedens durch Regionale Organisationen, Hamburg (Hansischer Gildenverlag), pp. 52-62 13 For further contributions to this debate see Nolte, G. (1994) Die "neuen" Aufgaben von NATO und WEU: VOikerrechtliche und verfassungsrechtliche Fragen, ZaiiRV, (Bd. 54), pp. 95-123; Theuermann, E. (1993) Regionale Friedenssicherung im Lichte von Kapitel vrnder Satzung der Vereinten Nationen: Juristische und politische Probleme, in: W. Kiihne, Blauhelme in einer turbulenten Welt, Stiftung filr Wissenschaft und Politik (Bd. 37), pp. 231-273; Vierucci, L. (1993) WEU: A Regional Partner of the United Nations, Chaillot Papers 12 (December 1993); Perrin, M. (1995) de Brichambaut, (1995) Us Nations Unieset les Systemes Regionaux, Socie~ Francaise pour Ie Droit International, Colloque de Rennes, Paris (Pedone), pp. 97-106. 14 Goodrich-E. - Hambro-Sirnons, A., (1969) Charter of the United Nations, New York (Columbia University Press), p. 356 15 Schreuer, C. (1990) Promotion of Economic Development by International Law at the Universal and/or the Regional Level, in:Wolfrum, R,(ed .) Strengthening the World Order, Universalism v. Regionalism, Berlin (Duncker & Humblot), p. 73 16 Tomuschat, C. Universal and Regional Protection of Human Rights: Complementary or Conflicting Issues, in: Wolfrum, op.cit.(note15), pp. 173-197 17 Jayantha Dhanapala (ed.),(1993) Regional Approaches to Disarmament, Security and Stability, United Nations Institute for Disarmament Research - Dartmouth (Aldershot) 18 Lang, W. op.cit.(note 3), pp. 124-167 19 On subnational regionalism see VoB, D.H . (1988) Regionen und Regionalismus im Recht der Mitgliedstaaten der Europiiischen Gemeinschaft, Frankfurt (Lang). 20 As to a recent German debate on CSCE see the contributions of Arnold, H., von Bredow, W. and von Plate, B. in the 1994 issues (February, March, April) of the Blatter fiir Deutsche und Intemationale Politik ; an overview of earlier developments is given by Mastny, V. (1992) The Helsinki Process and the Reintegration of Europe 1986-1991 , New York

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D. Ius ad bellum and ius in bello More explicitly, and much more satisfactory, is that the Court dealt with what it considered 'the most directly relevant applicable law governing the question of which it was seized', i.e. ius ad bellum and ius in bello. As regards the Court's relatively extensive analysis of the potential relevance of ius ad bellum, again soon became apparent the degree to which the Court must have struggled with the Assembly's request. The question under which circumstances States have the right to resort to violence, including the question when this may be done in exercise of the right of self-defence, is utterly irrelevant to the real question under consideration, i.e. which means and methods may be employed in such situations. In casu, the question under which circumstances States may have recourse to violence has no relation whatsoever to the question under what circumstances States may have the right to use nuclear weapons. Hence, the unanimously adopted ruling of the Court that '[althreat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful',27 makes no real legal sense. Again, one is forced to wonder whether the Court, indeed, tangled up ius adbellum and ius in bello. The following are finally a few observations on the Court's expose about aspects of ius in bello. Here, the Court's dilemma, perceived from the perspective of the policy of nuclear deterrence, becomes most conspicuous, where the Court concludes in general terms :

"If an envisaged useof weapons would not meet the requirements of humanitarian law, a threat to engage in such usewould also be contrary to that laui:" We come back to the far-reaching implications of this crucial conclusion below. Before elaborating on these, it may first be observed (very concisely, for reasons of space) that, for the remainder, the most important conclusions of the Court pertaining to ius in bello are probably the following." First, at the present stage of development in international law, no explicit prohibition regarding the use or threat of nuclear weapons has been formulated in treaty law. Second, likewise no such explicit prohibition can be derived from customary international law; in this connection the Court does refer to the balance of terror, observing: 'The emergence, as lex lata, of a customary rule specifically prohibiting the useof nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other." Third, as regards the prospect of deriving an implicit prohibition from the principles of humanitarian law of armed conflict and the law of neutrality, the Court once again leaves the question open by basically confining itself to the thesis that these principles apply to all forms of armed conflict and all kinds of weapons, including nuclear weapons. The Court hereby leaves the question regarding the (il)legality of the employment of nuclear weapons in general, and in any specific situation, unanswered.

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v. Conclusion Returning to the above-mentioned crucial link established by the Court between the use of nuclear weapons and the threat therefrom in general terms, i.e. without taking into consideration that there might be a reason and justification for distinguishing between several forms and contexts of such a threat, the Court seems indeed to have evaded a concrete reply to the Assembly's concrete question. It concluded that neither those States who in their interventions tried to prove the legality of the use of nuclear weapons under certain circumstances (e.g. the use of 'clean'; small-scale, in terms of radiation, heat and blast capacity well-controllable, tactical devices) nor those States who tried to prove the contrary (by reference to the fact that no use of any nuclear weapon could ever be lawful) had produced sufficiently convincing arguments to sustain their respective positions." In this connection, however, three questions arise: First, has the Court by relying virtually entirely upon arguments submitted by States in their interventions, not shirked one of its primary judicial tasks: to undertake its own analysis? Second, by reference both to the Assembly's formulation of the question - 'is the threat or use of nuclear weapons in any circumstance permitted under international law?'- and to its conclusion that the proponents of the possible legality of nuclear weapons did not submit convincing evidence to sustain their arguments, should the Court not have concluded that the question of the UNGA be answered in the negative? Third, could the Court, by reference to its own analysis of the potential applicability of ius in bello to the question submitted, not have at least declared that most of the currently envisaged modalities of the use of nuclear weapons, in particular their massive deployment where nuclear deterrence fails, would necessarily constitute a serious violation of the humanitarian law of armed conflict? Here lies the crux of the Court's dilemma: If the Court had done this, even implicitly, it would automatically have stigmatized the policy of nuclear deterrence as a violation of international law; as a consequence it would be stating that the prohibition of the use of any weapon, ipso facto and unconditionally, entails the prohibition of the threat to use such a weapon! By adopting this categorical approach, which does not leave room for distinguishing between different kinds of threat, the Court manoeuvred itself into a position, which appears to have eventually forced it to avoid a meaningful reply to the Assembly's question. The point made here is not intended to shed doubt on the logics and correctness of the relation between the prohibition of the use and the prohibition of a threat to use a weapon in general; the point is that in the present case, the Court could have concluded, that, with respect to nuclear weapons, and by reference to 'the still strong adherence to the practice of deterrence' which it recognized to exist, in today 's international relations States obviously accept and recognize that there is a difference between, on the one

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hand, a threat to use nuclear weapons which is explicitly aimed at preventing their use by another State and on the other hand all other kinds of threats regarding nuclear weapons which are not aimed at such prevention, but are geared to serve other purposes. Thus, the Court could on good grounds have concluded that, while normally a direct link exists between the prohibition to use a specific weapon and the prohibition to threat on use, this link apparently no longer exists in respect of the particular kind of nuclear threat posed within the framework of the policy of nuclear deterrence. Recognition of this distinction could have paved the way for the Court to present a more convincing and less evasive advisory opinion on the merits of this case. As a final observation, it is submitted here that the above should not be understood as suggesting that the present author would be an advocate of the unconditional maintenance of the balance of terror. On the contrary, the policy of nuclear deterrence carries with it the cradle of potential mass destruction. No reasonable person could ever rest assured that this preventive policy will continue to be effective forever. Eventually, the survival of mankind can only be served by the total elimination of all nuclear weapons, and by the total destruction of all nuclear arsenals. Seen from this perspective, one could perhaps have some understanding for India's recent refusal to sign the complete test-ban treaty, in reaction to the opposition of the nuclear Powers to incorporating a provision, according to which they commit themselves to dismantling their nuclear arsenals within a prescribed period of time. The importance, if not the necessity, of paving the way for nuclear disarmament has been recognized by the International Court of Justice in the present advisory opinion. It strongly reminds the nuclear Powers of their commitment under the Non-Proliferation Treaty to negotiate, as soon as possible and in good faith, total nuclear disarmament." But the Court's conclusion that nuclear disarmament provides the key for opening the door towards a future acceptance of a total ban on the use and threat of nuclear weapons constitutes, at the present stage of world history, little more than an eyewash. It cannot entirely remove the widely felt disappointment over what may have been a missed opportunity to mobilize international law more authoritatively in support of efforts to release mankind from the madness of the prospect of nuclear destruction.

Notes : 1 2 3

This question is set forth in WHO Resolution 46.40, adopted by the World Health Assembly on 14 May 1993, annexed to a letter of the Director-General of the WHO dated 27 August 1993, filed in the IC] Registry on 3 September 1993. This question is set forth in Resolution 49/75 K adopted by the UNGA on 15 December 1994, annexed to a letter of the UN Secretary-General dated 19 December 1994, filed in the IC] Registry on 6 January 1995. In favour : President Bedjaoui; Vice-President Schwebel; Judges ada, Guillaume, Ranjeva, Herczegh, Shi, F1eischhauer, Vereshchetin, Ferrari Bravo, Higgins . Against: Judges Shahabuddeen, Weeramantry, Koroma.

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4

Legality of the use by a Stateof nuclear weapons in armed conflict, Advisory Opinion, ICJ Reports 1996, p. 66, at page 84, para. 31. (Hereinafter referred to as: WHO Advisory Opinion).

5 Ibid., para 25. Effect ofawards ofcompensation made by the United Nations Administrative Tribunal, ICJ Reports 1954, p. 57. Cf., also the advisory opinions given by the PCIJand the ICJas referred to in para. 25. 7 WHO Advisory Opinion, para. 21. 8 Ibid., para . 25 [italics supplied]. 9 Ibid., para . 22. 10 Ibid., [italics supplied] . 11 Oral statements could be made in the course of public hearings held between 30 October and 15 November 1995. 12 Legality ofthethreat or useof nuclear weapons, Advisory Opinion of the ICJ,General List No. 95, para . 15, (Hereinafter referred to as: GA Advisory Opinion). 13 Art. 65 para . 1 of the ICJ Statute provides : 'The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized ... to make such a request' [italics supplied]. 14 GA Advisory Opinion, para. 12. 15 Ibid., para. 13. 16 Cf., the list of cases referred to by the Court in this connection, in ibid., para . 14. 17 Ibid., paras . 15-17. 18 Ibid., para . 18. 19 Ibid., para 19. 20 Ibid., paras. 24-25. 21 Ibid., para. 25. 22 Ibid., para. 26. 23 Ibid. , para . 29. 24 Ibid., para. 30. 25 Ibid. 26 Ibid., para . 33. 27 Ibid., para. 105, Decision 2.e. This conclusion applies likewise to the Court's observation that ' in view of the present stateof international lawviewed as a whole, asexamined above by theCourt, and of theelements offact at its disposal, the Court is ledto observe that it cannot reach a definitiveconclusionas to the legality or illegality of the useof nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake' (para. 97). See also the similar Court decision 2.E, adopted by seven votes to seven (ibid ., par. 105). 28 Ibid., para . 78. 29 Cf., ibid., paras . 51-97. 30 Ibid., para . 73. 31 Cf., ibid., paras. 94-95. 32 Cf., ibid., paras. 98-103. 6

THE COURT'S JUDGMENT IN THE CASE CONCERNING THE GABCIKOVO-NAGYMAROS PROJECT (HUNGARY/SLOVAKIA): SOME PRELIMINARY REFLECTIONS K. Wellens I. Introduction

During the first week of October 1971 the traditional introductory meeting of the International Law Seminar was held at the Law Faculty of the K.U. Leuven. Tension was noticeable amongst the group of undergraduates attending that meeting, as the allocation of a topic by Professor Suy could turn out to be the critical factor for a succesful outcome in our penultimate academic year. All those present at that time still have vivid memories of that occasion. The task I was entrusted with could hardly be described as an easy one: indeed merely four months after the Court had delivered its Advisory Opinion I had to make an analysis of the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). The text of the Advisory Opinion had to be obtained from the Peace Palace in The Hague and it was obviously too early for comments by learned writers. The exercise was highly interesting, very educational and undoubtedly co-determined my life-time interest in public international law. More than a quarter of a century later I was faced with making a choice on the topic for my own contribution - as my personal tribute to Professor Suy - to this volume. The experience gained from my Namibia-exercise almost naturally led me to the Court's Judgment, rendered on 25 September 1997 in the case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia). A Judgment of the Court places itself at the crossroads of "theory and practice" , because the cases brought before it present many opportunities for the Court to determine the applicable law and then to apply it to the facts of the case at hand . In fulfilling this role in both advisory and contentious proceedings, the Court is continuously building and expanding "judiciallaw" as it was called by Bin Cheng. The importance of this case is beyond debate! and is stems from several factors. The dispute leading to the proceedings not only involves for the first time two States formerly belonging to the Eastern Bloc, but it also originates from a joint development project alongside and on one of Europe's most important international waterways, a project having both economic advantages and ecological repercussions. The multifaced case stands out not only because of the respective weight of the major areas of international law involved, but also because of the 765 K. W~Il~ns (~d.).lnternnrioTIQI Law: Theory and Practice, 765--799. @ 1998KluwerLaw Int~rTIIlrioTIQ1. Primed in the Netherlands.

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interconnection between the primary rules of a more procedural nature and others having a substantive character, and between these primary rules and the secondary rules concerning the law on state responsibility. This particular feature of the case led to a rather high degree of intertwinement of and complexity in the issues involved . In this contribution some preliminary reflections are recorded as to the different legal questions raised by this case. Time constraints inevitably led to the following pages being of a tentative nature. After having briefly reviewed some general features of the Special Agreement (11), we will look consequently into questions regarding the law of treaties and applicable treaty law (III), the law on the protection of the environment (IV) and the law on state responsibility (V). A functional analysis of the Court's handling of the case (VI) will be followed by general aspects of international law (VII) before presenting some concluding remarks (VIII). We will not dwell upon the facts of the case as they are well-known and as they have moreover been aptly summarized by the Court in paragraphs 15-23 of its Judgment. May it suffice to recall, as Judge Oda correctly observed, that if a campaign had not been launched by environmental groups, the Project would have gone ahead as planned. Moreover without the actual unilateral damming of the Danube, the case would probably not have come before the Court. For reasons of convenience the Editor of this volume has allowed the present author to avoid innumerable references to the text of the Judgment and to the Separate and Dissenting Opinions; by the time of publication of this volume, its readers will have become quite familiar with the relevant parts of these texts. The same goes of course for the arguments of the Parties. II. Some general features of the Special Agreement The Court's Judgment - rendered slightly more than five months after the closure of the public hearings - came more than four years after the Special Agreement had been filed with the Registry. The case belongs to the minority category of cases brought before the Court by way of a Special Agreement', one in which both Parties considered there were differences between them regarding the implementation and the termination of the 1977 Treaty, and regarding the construction and operation of the "provisional solution". In spite of the difficulties encountered by both Parties during the preadjudication phase, they demonstrated what was left of the joint endeavour towards the Project, by committing themselves to apply, pending the Judgment, a temporary water management regime of the Danube which still, however, remained to be agreed upon. The very conclusion and continuing validity of the Special Agreement was made dependent upon that fundamental commitment. On the other hand, the deterioration in the relations between the Parties provoked such mutual distrust that conduct, by any of them, endangering the rights of the other, could have resulted in third-party involvement to protect

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these rights in the period before the establishment or the implementation of that temporary water management regime . The Court would not be called upon to consider a request under Article 41 of the Statute. Whether only rights or conduct relating to the above mentioned temporary regime would come under the exclusion clause is not absolutely clear, given the way the relevant provision had been drafted. Within the context of the necessary political compromise, which is inherent in any Special Agreement, and thanks to the vital assistance provided by the European Communities, the Parties narrowed down the questions to be submitted to the Court to three . The subdivisions and distinctions made in their respective and overall presentation caused major problems for the Court's handling of the case, as will be demonstrated below. The Court was also requested to determine the legal consequences arising from the answers it would give to these three questions. Regarding the post-adjudication phase, the Parties allowed themselves a maximum period of six months to reach an agreement on the modalities of the execution of the Judgment. At the time of publication of this volume, it will already have become clear whether either of the Parties has taken the opportunity to request the Court to render an additional Judgment to determine these modalities. The case is still continuing. The structure of the Special Agreement resulted in a large (paras . 26-124) declaratory and a much smaller (paras. 125-154) prescriptive part of the Judgment. Although the case did contain a rich array of environmentally related legal issues (Judge Weeramantry) and it presented the Court with the first real opportunity to deal with such issues, Judge Bedjaoui's fear that the ecological matters by taking front stage, risked removing the focus from the law of treaties, certainly did not materialize in the Court's actual handling of the case. Indeed the Court's attention was focused mainly on the law of treaties and the law on state responsibility. International environmental law played a more subordinate role in the Court's assessment of the past conduct of the parties, but it was certainly upgraded to some extent, in the prescriptive part of the Judgment. III. The law of Treaties and applicable Treaty Law As a result of both the facts of the dispute giving rise to the case, and the provisions of the Special Agreement, the Court was bound to deal extensively with one of the cornerstones of the international legal order i.e. the law of treaties and applicable treaty law. Even a first reading of the Judgment points to the crucial role procedural (the law of treaties) and substantive rules (the applicable treaty law) would play in the Court's answer to the three questions submitted to it, and its ensuing determination of the legal consequences arising from the Judgment.

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A. The Applicability of the 1969 Vienna Convention on the Law of Treaties to the 1977Treaty With regard to this first issue which divided the Parties, the Court limited itself to recalling its consistent jurisprudence that some of the rules of the 1969 Convention might indeed be considered as codifying pre-existing customary law. This applies in many respects to the provisions concerning suspension and termination of the operation of treaties. The Court pointed out that in any event the 1969Convention was applicable to the 1989acceleration Protocol. Referring to Article 73 of the 1969 Vienna Convention and Article 17 of the ILC-Draft Articles on State Responsibility the Court made its position clear that the distinction between these separate branches of international law should not be blurred. The law of treaties governs questions such as the proper suspension or denounciation of a treaty, while once conduct incompatible with the law of treaties has been established, potential ensuing responsibility should be assessed according to the law on state responsibility. We will turn to this issue in Section VII. B. The 1977 Treaty and related Instuments According to the Special Agreement the "differences" between the Parties concerned inter alia the application and termination of the 1977 Treaty and related instruments. The expression "related instruments" had not been defined nor had a list been provided: no agreement had been reached between the Parties on either of these issues. The 1977 Treaty provided for a Joint Contractual Plan (JCP) to be drawn up setting forth the objectives of the system of locks and the characteristics of the works: the JCP constituted the means to realize the single and indivisible nature of the Project, and to achieve the objectives of maintaining water quality and protecting the environment. The Court noted that for the Parties the expression "related instruments" seemingly covered at least the 1977 Agreement on mutual assistance and the "slow down" and "acceleration" Protocols of 1983 and 1989,with the exclusion of the JCP which Hungary refused to consider as being at the same level as the other agreements, a view shared by Judges Oda and Herczegh. The fact that the Parties, in their reasoning, concentrated on the 1977 Treaty and apparently extended their arguments to "related instruments", (considered to be accessories of the whole treaty system), did not go unnoticed by the Court. C. What kind of a Treaty is the 1977Treaty?

The question of the nature of the 1977 Treaty - a question distinct from the identification of its object and purpose which will be reviewed in the next subparagraph - came up in the course of debate between the Parties, on the issue of whether Slovakia had become a party to the 1977Treaty, as a successor of Czechoslovakia. This line of reasoning - hardly consistent with the second

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paragraph of the Special Agreement - was forwarded as an alternative argument to the Treaty's disputed termination by Hungary. Divergent views were held on both the existence of a rule of automatic succession to all treaties and the potential invocation of an exception to that rule based on the territorial or localized nature of the 1977Treaty. The Court held that Article 12 of the 1978 Vienna Convention on Succession of States in respect of Treaties reflects a rule of customary law. An examination of the content of the 1977 Treaty led the Court to the conclusion that the 1977 Treaty should be regarded as establishing a territorial regime: the construction of a large, integrated and indivisible complex of structures and installations on the territories of both Parties, the establishment of a navigational regime for an important sector of the international waterway and safeguarding the interests of other users of the Danube. Consequently, the Treaty became binding upon Slovakia on 1 January 1993. Judge Bedjaoui, who had been the ILC's Special Rapporteur on the topic, would have preferred the Court to give more attention to the nature of the 1977 Treaty and he referred to the type of succession (dissolution), to Slovakia's participation in the conclusion of the Treaty (a point which was only mentioned by the Court) and to its declaration to be bound, as additional reasons for the succession. The joint nature of the Project was bound to play a decisive role in the Court's assessment of Slovakia's provisional solution (see infra Section V, B). D.The Impact of the Object and Purpose of the 1977 Treaty The principal object of the 1977 Treaty was the construction of the GabcikovoNagymaros System of Locks as a joint investment, constituting a single and indivisible operational system. The multiple purposes of the Treaty were considered by the Court to be of equal value, none having been given absolute priority. All of these purposes had to be pursued and fulfilled in a joint and integrated way. Consequently, the negotiations between the Parties, in the post-adjudicative phase on an agreed solution, should take place within the legal framework inter alia provided by these multiple objectives. The intentions of the Parties at the time of the conclusion of the Treaty and the purposes of the latter should, in the Court's view , prevail over a literal application (see infra sub-paragraph I). E. The Flexibility of the 1977 Treaty The sheer size of the overall investment project, extending over a considerable period of time, and based upon the joint participation of the two Parties involved in the different stages of financing, construcing and operating (all multiple objectives to be equally achieved) called for a built-in mechanism of flexibility. This was reflected in the Articles 15, 19 and 20 of the Treaty.' Additionally the provisions of the 1969 Vienna Convention on the Law of

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Treaties relating to the amendment of treaties were applicable to the extent that they could be considered as reflecting customary law. The flexibility of the Treaty was put into operation interalia by the conclusion of the "related instruments". The built-in mechanism of flexibility was also necessary for the fulfilment of the requirements as to the continuous environmental impact assessment of the Project by both Parties (see infra Section IV). Negotiations to amend the Treaty were called for by Hungary because inter alia of the renewed environmental concerns, while Hungary's subsequent suspension of the Treaty's operation was challenged by Slovakia by inter alia referring to the various modifications the Treaty had already undergone since 1977. The Court had no difficulty in stressing the dynamic nature of the Treaty . The wording of Articles 15 and 19 was not merely permissive but also prescriptive. New environmental concerns would also be reflected in the obligation to negotiate on an agreed solution (see infra subparagraph I). But even if the means to realize the Treaty's object were subject to change and improvement, the Treaty's object remained unchanged, as was appropriately pointed out by Judge Bedjaoui. F. The Suspension of the Application of the 1977 Treaty. The Parties were in agreement that the flexibility of the Treaty and its related instruments did not go so far as to envisage a possibility of unilateral suspension or abandonment of the works provided for. The Court did not accept' Hungary's attempt to distinguish between its suspension and abandonment of certain works, which it admitted to, and the suspension of the application of the 1997 Treaty, which it denied as being unintentional . Hungary's conduct could only be interpreted as a demonstration of its unwillingness to comply with at least some of the provisions of the applicable instruments. The consequence of this conduct was that the single and indivisible accomplishment of the works became impossible. To justify its conduct, Hungary essentially" relied on a state of ecological necessity, which, according to Slovakia is not recognized as a ground for the suspension of a treaty obligation under the law of treaties. The Court instantly dismissed Hungary's claim that the law of treaties provided for a claim of necessity as a ground for the suspension of the application of a treaty. Invoking a state of necessity belongs by definition to the purview of the law on state responsibility, and does not warrant a conclusion that the State relying upon it was acting in conformity with the treaty obligations of the applicable treaty, nor that these obligations were no longer applicable to that Party. The conclusions reached by the Court on the state of necessity as a circumstance precluding wrongfulness (see infra Section V) did not make it necessary for the Court to examine the alleged violations of the Treaty by Czechoslovakia before 1989.

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G. Does a Principle of Approximate Application of a Treaty exist? Slovakia did invoke the principle of approximate application - as a principle of international law and as a general principle of law - as the basis for its entitlement to proceed with Variant C: this solution came as close to the original Project as possible, and the 1977 treaty continued to be implemented in good faith and its purposes were being fulfilled. Hungary denied the existence of any such principle in international law. According to the Court it was a cardinal condition that such a principle, assuming that it existed, could only be applied within the limits of the applicable treaty . The Court did not consider it necessary to determine the existence of "approximate application" either as a principle of international law or as a general principle of law, as this cardinal condition was not fulfilled in the case of Variant C. Judge Bedjaoui expressed a wish that the Court had more vigourously censured this theory of "approximate application", because the principle of pacta sunt servanda could be damaged by such a process. In his Dissenting Opinion Judge Herezegh indicated that by notifying its termination of the Treaty, Hungary wanted to deprive Variant C of this possible justification. A number of Judges considered Variant C to be a genuine attempt (Koroma), an alternative but inevitable means (Oda) to rescue the achievement of the objectives of the 1977 Treaty, and to take over Hungary's role (ParraAranguren). The doubts cast by the Court on the existence of the approximate application of a treaty does not necessarily operate in support of the stability of treaty relations. One could easily envisage situations arising within a treaty framework where the stability would indeed benefit from such an approximate application, and this could be preferable over the suspension or the repudiation of a treaty . On the other hand the law of treaties provides State parties with a number of alternative mechanisms and procedures to meet changing demands which evolve during the treaty's lifetime, such as the amendment, revision and even the conclusion of a completely new treaty. H.The Notification of the Termination of the 1977Treaty We will review the grounds invoked by Hungary for the lawfulness of its notification of termination, as the run up to that decision will be included in the next SUb-paragraph on the obligation to negotiate on an agreed solution. The immediate cause for the termination was, in Hungary's view, the refusal by Czechoslovakia to suspend work on Variant C, while the mediation efforts of the Commission of the European Communities were in progress. The Court recalled that the relevant provisions of the 1969 Vienna Convention on the Law of Treaties, Articles 60 to 62, are, in many respects,

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declaratory of customary law. In the absence of any provision in the 1977Treaty on its termination, this was only possible based on the limited grounds to be found in the 1969 Convention , also given the fact that any intention of the parties to allow for such a possibility is contradicted by the longstanding and durable regime of joint investment and joint operation.

1. The State ofNecessity Hungary had already relied on this argument in connection with the suspension and abandonment of the works it was responsible for, but this time Hungary argued that the temporary state of necessity eventually became permanent as a result of Czechoslovakia's continuing inflexibility and the implementation of Variant C. Slovakia denied both the existence of a state of necessity and its being a ground for termination of a treaty under the 1969Vienna Convention. The Court's reaction was identical to the response it gave on the first occasion: a state of necessity is not a ground for the termination of a treaty; it belongs to the law on state responsibility where, if justifiable, its suspensive effect would render the Treaty ineffective, or dormant for the period of the state of necessity. However, the Treaty would not be terminated as a result, unless the Parties mutually agree otherwise. When addressing the issue of state responsibility the Court, quite extensively, considered the argument of the state of necessity invoked by Hungary, to defend its actions (see infra Section V).

2. Impossibility ofPerformance Can a legal situation i.e, the joint economic investment consistent with environmental protection and jointly operated by the two Parties, constitute the "object indispensable for the execution of the Treaty"? and if so, did it permanently disappear (Hungary)? Do the provisions of the Vienna Convention clearly contemplate physical dissappearance or destruction? And was this not the result of the invoking Party's own breach of its obligations under the 1977Treaty (Slovakia)? According to the Court, Hungary's interpretation was not consistent with the terms of Article 61 of the Vienna Convention and the intention of its drafters who opted for a narrow concept of permanency. Anything beyond this could produce a circumstance precluding wrongfulness of the non-performance by a Party of its treaty obligations, and thus come under the branch of the law on state responsibility. The Court did not consider it necessary to determine whether a legal regime could constitute the "object" in the sense of Article 61. Even if that were the case the existence of that regime did not come to a definite end: the built-in mechanisms for change - of Articles 15, 19 and 20 - could take care of the necessary readjustments between economic and ecological imperatives.

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Additionally the Court accepted Slovakia's argument as to the . noninvocability of that impossibility by Hungary, because of its own breach of obligations under the same Treaty.

3. Fundamental change ofcircumstances A number of events were invoked by Hungary and which in cumulation constituted, in Hungary's view, a fundamental change of circumstances under Article 62 of the 1969 Vienna Convention on the Law of Treaties. These included changes of a political nature, the diminishment of the Project's economic viability, the development of environmental knowledge and environmental law, the replacement of a single and indivisible operational system by an unilateral scheme and the inflexibility of the norms of the Treaty as a result of Czechoslovakia's attitude. Czechoslovakia's action with regard to Variant C amounted to a repudiation of the Treaty. Slovakia maintained that the nature of the obligations had not been altered by these changes. In the Court's opinion the prevailing political situation and the economic system in force in 1977 were not so closely linked to the object and purpose of the Treaty so as to constitute an essential basis for the consent of the Parties and to radically alter the extent of the obligations still to be performed as a result of the changes. The record before the Court did not show that the decrease in the estimated profitability of the Project was such as to result in a radical transformation of the treaty obligations of the Parties. The new developments in environmental knowledge and environmental law were, according to the Court, not only completely unforeseen, but Articles 15, 19 and 20 were inserted into the Treaty back in 1977 to accomodate the necessary changes.' The Court concluded that neither the effect nor the cumulation of the individual circumstances could cause a radical transformation of the remaining treaty obligations.' The Court stressed the importance of stability in treaty relations; as a result the invocation of a fundamental change of circumstances should be applied only in exceptional cases.

4. Material breach of the Treaty Hungary, invoking Article 60 of the 1969 Vienna Convention, claimed that Czechoslovakia had committed a dual material breach, by proceeding to the construction stage and putting into operation Variant C, and by failing to comply with its obligations under Articles 15 and 19,because it refused to enter into negotiations in order to adapt the JCP to new scientific and legal developments regarding the environment. Other international conventions and general intemationallaw were also allegedly breached by Czechoslovakia. The above allegations were denied by Slovakia on all accounts.

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As to Hungary's last argument, the Court again indicated the separate operational scope of the law of treaties and the law on state responsibility. Only a material breach of the treaty itself qualifies as a potential ground for termination. Violation of other treaty rules or of rules of general international law could justify the injured State taking measures, but provides no ground for termination under the law of treaties. On the basis of the record before the Court it was impossible to blame just one Party for the violations of Articles 15 and 19. The Court did not find sufficient evidence pointing to a consistent refusal on the part of Czechoslovakia. The willingness, in principle, of both Parties to undertake further studies was not reflected in practice: there was a refusal to accept suspension of the works at Dunakiliti and on Variant C (Czechoslovakia) and a continuous insistence on that very suspension as a prior condition for environmental investigation (by Hungary). Hungary's own suspension of the works at Nagymaros and Dunakiliti was, in the Court's opinion, not instrumental in creating a situation which was conducive to fruitful negotiations. As a result of the Court's findings (to be reviewed under Section V), that the construction of the work on Variant C was not an unlawful act, Hungary's notification of 19 May 1992 was premature, as the material breach of the 1977 Treaty, in the Court's view, had only occurred when Czechoslovakia diverted the waters of the Danube into the bypass canal in October 1992.8 The Court also considered the alleged termination itself - only six days after the notification - to be premature: Hungary had not yet suffered injury resulting from acts of Czechoslovakia, and thus its conduct ran counter to certain procedural principles of customary law based on an obligation to act in good faith," Finally, the Court stated that it could not overlook the fact that Czechoslovakia's unlawful act was the result of Hungary's own prior wrongful conduct. By acting as it did, the Court continued, Hungary had prejudiced its right to terminate the 1977 Treaty. In addition, the Court noted that the violation by Czechoslovakia of a provision which was essential to the accomplishment of the object or purpose of the Treaty, at the relevant time of termination, would not have changed that. This reasoning of the Court's majority came under serious criticism from the Dissenting Judges . Even if the circumstances precluding wrongfulness and the mitigating circumstances for Hungary's suspension and abandonment of the works for which it was responsible were not acceptable, this could not have resulted in the loss of Hungary's right to terminate the Treaty, because its violations were of a less serious nature than Czechoslovakia's wrongful conduct (ludge Herczegh). In Judge Fleischhauer's opinion the loss of the right to terminate a treaty is not appropriate in a situation of disproportionate, intersecting wrongs, because this should be found in the limitation of the first offender's right to claim redress for the second offence.

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We will come back to these points when we review the legal consequences of the Judgment in Section V.

5. Developments in Environmental law. As the penultimate ground for its entitlement to terminate the Treaty, Hungary argued that the precautionary principle had turned the pre-existing obligation not to cause substantive damage to the territory of another State, into an erga omnes obligation of prevention of damage. Czechoslovakia's refusal to suspend work on Variant C forced Hungary to terminate the Treaty, as it was precluded from performing it under the new rules of environmental law. Slovakia denied the ius cogens character of these new norms which would override the Treaty. Hungary's ground for termination could not be succesful in the law of treaties - it belonged to the law on state responsibility. The Court once more recalled the potential application of Articles 15,19 and 20 to keep the Treaty's implementation in line with newly developed norms of international environmental law. The implementation of this joint responsibility requires, of course, a mutual willingness to discuss, in good faith, present and future environmental risks. Judge Bedjaoui added that the straightforward incorporation of new environmental law which would constitute a revision of the Treaty, could only take place under the procedural mechanism provided by the Treaty with the consent of both Parties.

6. Reciprocal non-compliance The final argument of Hungary was based on the alleged repudiation of the Treaty as a direct result of the conduct of both Parties: in such a situation the survival of a bilateral treaty was impossible. The Court's position was clear and unambigious: the 1977 Treaty could not and was not terminated by the Court's finding of the reciprocal wrongful conduct of both Parties. The integrity of the rule pacta sunt servanda and treaty relations in general would be seriously damaged by such a precedential holding of the Court. A treaty in force between States and which, over a considerable period of time, has been implemented to a considerable degree, and at great cost to the Parties, cannot be set aside unilaterally by one the Parties invoking reciprocal non-compliance. Such a treaty could be terminated by mutual consent, which was obviously lacking in the case. The most substantive finding of the Court as far as the law of treaties is concerned, is the survival of the 1977 Treaty, albeit not in its original form. Judge Koroma was correct in adding that any finding to the contrary would have been tantamount to undermining one of the fundamental principles of the Charter. The importance of the Court's pronouncements on one of the cornerstone principles of the international legal order can hardly be overestimated, given

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the ever present temptation for States, for a wide variety of reasons, to unilaterally free themselves of their conventional obligations. The very essence of the rule pacta sunt servanda allows only for a restrictive interpretation and application of the grounds for suspension and termination of treaties, both under conventional and pre-existing customary law. The Court in this restrictive approach supported the positions taken in this regard by both the ILC and the 1969Diplomatic Conference. Built-in mechanisms for evolutive application renders more difficult the invocation of developments in international law, subsequent to the treaty 's conclusion, as a ground for suspension or termination, but they do not go so far as to allow for the performance of obligations according to a new schedule which had not been approved by the Parties . I. The Obligation to negotiate on an agreed Solution This obligation was a constituent element of the applicable treaty law and it remained as such as a result of the Court's finding that the 1977 Treaty was still in existence. The modalities for its implementation were specified by the Court as part of its determination of the legal consequences arising from the declaratory part of its Judgment. The obligation to negotiate on an agreed solution can thus be found throughout the successive stages of this dispute.

1. Under the 1977 Treaty Under -the 1977 Treaty itself the scope ratione materiae of this obligation to negotiate was wide ranging and it covered the organization and activities of the permanent joint agencies, the drawing up of the JCP, the remaining differences arising from operating costs, the issues governed by Articles 15, 19 and 20, a revision of State frontiers and necessary exchange of territory, the crossing of State frontiers by authorized personnel, and the cross-border transfer of machinery and material. Finally the Governments of the Contracting Parties were to take decisions if their governmental delegates were unable to reach agreement on disputes over matters relating to the realization and the operation of the System of Locks. Continuous consultations, deliberations and negotiations between the competent authorities of both Parties were a structural feature of this joint investment. The diverse related obligations were considered, from the outset, to constitute essential elements in the good faith performance of the 1977Treaty . The history of the dispute provided the Court with ample information and examples to lead it to find a respective unwillingness on the part of the Parties, at different stages of the unfolding of the dispute, to negotiate at all, or to negotiate unconditionally in good faith. This attitude inevitably led to the deadlock situation which called for the third-party involvement of the Commission of the European Communities.

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Although the Court was not called upon to pronounce on the Parties' respective responsibilities for the failure of the negotiations (Iudge Herczegh), it was clear that the good faith of both Parties had been eroded step by step by mutual distrust (Iudge Bedjaoui), so that the result was also intersecting wrongs in this respect.

2. Under theSpecial Agreement Two important obligations to negotiate were included in the Special Agreement. The first one related to the establishment of a temporary water management regime," The second obligation would become operational after the Court had delivered its Judgment. It had the modalities for the execution the Court's Judgment as its subject-matter, with a pre-fixed time limit of six months. It should be noted in this regard that the Parties deliberately chose to temporarily suspend the Court's task of determining the modalities for the execution of its own Judgment. They reserved the actual bringing into operation of this part of the Court's jurisdiction as an additional element of pressure to be placed on the common performance of their joint obligation to negotiate on an agreed solution.

3. In thepost-adjudicative Phase It was inevitable that both Parties would hold divergent views as to this obligation to negotiate on an agreed solution in the post-adjudicative phase, as part of the overall legal consequences arising from the Judgment. Their political willingness to negotiate their future relations was cautiously expressed, it focused on specific subject-matters and the acceptance of the outcome of the negotiations on particular issues was made conditional. The Court carefully and distinctively elaborated on the overall requirements for the future conduct of the Parties, on the legal basis for the obligation to negotiate on an agreed solution, and on the legal framework within which the negotiations should take place. First the Court recalled that the relationship between the Parties is governed by the rules of all relevant conventions binding the Parties and the rules of general international law. The rules on state responsibility were, in this case, of particular importance, but above all the applicable rules of the 1977 Treaty governed these relations, as a lexspecialis. The Court stressed that the existing factual situation resulting from the complete non-implementation by both Parties of the 1977 Treaty, could not be disregarded or overlooked in its determining the legal requirements for the future conduct of the Parties. This should apply equally to the law of treaties and to the law on state responsibility. The 1977 Treaty was preserved by the Court despite the reciprocal wrongful conduct and it placed the factual situation within the preserved and developing treaty relationship as a matter of necessity, in order to remedy the irregular

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state of affairs and to achieve the Treaty's object and purpose to the greatest degree possible. The Court found the legal basis for the obligation to negotiate firstly in Article 5 of the Special Agreement. Secondly, it found that this obligation is one of the legal consequences which stem from its finding that the 1977 Treaty is still valid and in force. Thirdly, it found that the rule pacta sunt servanda requires the Parties to find an agreed solution within the co-operative spirit of the 1977 Treaty. The legal framework established by the Court for the post-adjudicative negotiations comprises the following elements. An initial legal obligation incumbent upon the Parties throughout negotiations is to consider how the multiple objectives of the Treaty can best be reasonably achieved: that is the meaning of performing a treaty in good faith. A second constituent element of the legal framework had to be found, according to the Court, in the concept of sustainable development, which expresses the need to reconcile issues of economic development with the protection of the environment. The Parties should take a fresh look together at the effects of the Gabcikovo power plant on the environment; in this respect finding a satisfactory solution for the volume of water to be released is of particular importance." Thirdly the Court recalled its well-known ruling that the Parties are under an obligation to conduct themselves in such a way that renders the negotiations meaningful. Insisting upon respective positions without contemplating any possible modification, would run counter to that obligation. Fourthly the negotiations which should be undertaken without preconditions should be conducted in good faith, which could be tested by inter alia the readiness of the Parties to accept the assistance and the expertise of a third party, who they had previously called upon but unsuccessfully because of their respective attitudes during tripartite talks. The obligation to negotiate in good faith does not rule out the possibility that Parties provide for a fall-back position, in case of failure of the negotiations. This is a reflection of reality as was pointed by Judge Bedjaoui. To envisage unilateral action as a fall-back position could even be a necessary part of the normal strategy and tactics of negotiations, according to Judge Bedjaoui, unless of course bad faith is evident. As far as the future negotiations are concerned the Court has taken away this unilateral fall-back position by imposing the restoration of the joint regime." On the other hand, the Parties themselves have endorsed such a position in their Special Agreement when they provided for an unilateral seizure by the Court in case of unsuccessful negotiations. The re-establishment of a joint regime would reflect, according to the Court, the concept of a common utilization of shared water resources and it would accord with Article 5, paragraph 2 of the 1997 UN Convention on the Law of Non-Navigational Uses of International Watercourses. Although the Court's determination of the final result was accompanied by the formula "unless the Parties agree otherwise", numerous factors of the

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history of the dispute and the Court's findings on the legal position of the Parties under the law of state responsibility, warrant the conclusion that the Parties would be less inclined in this case than in normal circumstances to use their full discretion to influence the outcome of the negotiations. IV. The Law on the Protection of the Environment

The law on the protection of the environment forms part of the overall law applicable to the settlement of the dispute as provided for in Article 2, paragraph 1 of the Special Agreement, both in terms of conventional and general international law. It was included in the reasoning of the Court mainly as a result of the arguments raised by Hungary, and not as a separate heading. The dispute between the Parties is firmly rooted in the divergent ways in which they voiced their environmental concerns caused by the joint investment and development project, and in the manner in which they responded to these concerns. Concern for the environmental impact was present before the conclusion of the Treaty, it led to the creation of the built-in mechanism of flexibility, it caused the suspension and abandonment of the works by Hungary and it provoked the controversy about the existence of a state of ecological necessity. As the Court said, the need to protect the environment, "had not escaped" the Parties, but was originally destined to play a minor role in the implementation of the Treaty. The Court agreed that the Project's impact on and its implications for the environment were key issues, and that both were considerable as abundantly evidenced by numerous often contradictory scientific reports. Referring with approval to the lLC-Commentary on Article 33 of its Draft Articles, the Court acknowledged without difficulty that the concern of a State for its natural environment in the region could relate to an essential interest of that State. Furthermore the Court reaffirmed the existence of a general obligation for States to ensure that activities within their jurisdiction and control, show respect for the environment of other States, or for areas beyond national jurisdiction. Because of the often irreversible character of the damage and the inherent difficulties in repairing it, States are required to conduct themselves in a vigilant and preventive way. This means that new norms and standards have to be taken into consideration on a continuous basis - a need expressed in the concept of sustainable development - and this is an evolving obligation for both Parties. The need to take the required precautionary measures was not disputed by the Parties. This obligation forms part of general international law and was also expressed in the relevant Articles 15 and 19 of the 1977Treaty. The Court did not examine the erga omnes nature of the obligation to prevent damage pursuant to the precautionary principle, which was raised by Hungary. The erga omnes character of the obligation to protect the environment" was also referred to by Judges Oda and Weeramantry, the latter pointing out that

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ad versa rial procedures should be reconsidered in cases where serious environmental damage has been caused to parties other than the immediate litigants. Although one could agree in principle, it should be added that Articles 62 and 63 of the Court's Statute do already provide procedural guarantees to that effect, an option which was also available to the other riparian States of the Danube. The fact their interests had been affected by the 1977 Treaty was acknowledged explicitly by the Court. As a result one could reasonably assume that the Court's decision in the case would come under the scope of application of both Articles 62 and 63. The Court did not examine whether Variant C constituted a violation of the precautionary principle, nor did it assess the respective or joint conduct of the Parties in the light of more procedural obligations under general international law such as the duty to notify, to inform and to consult - the application of which is not completely ruled out by the lexspecialis nature of the 1977Treaty. Judge Weeramantry went one step further than the majority of the Court when he considered sustainable development not merely to be a concept, but also a principle with normative value, based upon both the right to development and the right to environmental protection. New developments in environmental law - neither of the Parties contended that these norms had acquired a peremptory character - cannot be said, in the Court's view, to have been completely unforeseen within the context of an invocation of a fundamental change of circumstances under the law of treaties . Within its analysis of the state of necessity the Court recalled its 1996 statement that "the environment is not an abstraction, but represents the living space, the quality of life and the very health of human beings, including generations unborn." However, the Court was correctly criticized by Judge Herczegh for not having taken due account of its own statement: the Court should have made an inquiry into the effective application of the environmental provisions of the Treaty during the course of the construction of the Project. In its examination of the lawfulness of the putting into operation of Variant C, the Court was bound to consider the principle of equitable utilization of shared water resources. The 1997 UN Convention on the Law of NonNavigational Uses of International Watercourses has extended the pre-existing principle for navigational uses. The Court did not make any further enquiries into the foundations of this extension nor into relevant state practice. The fact that the extended principle was a principle of general international law was stressed by Dissenting Judges Herczegh and Skubiszewski, while Judge Koroma stressed the lex specialis character of Article 14, paragraph 2 of the 1977 Treaty as modifying the normal entitlement to an equitable share under general international law. The Court found that Hungary's prior agreement under the Treaty to a diversion of the Danube, did not constitute consent to a unilateral diversion of such magnitude as performed with Variant c.l •

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V. The Law on State Responsibility

The law on state responsibility was at the heart of the matter raised by the first two questions which the Parties decided to submit to the Court when they concluded the Special Agreement. The lengthy arguments of the Parties devoted to the question of the relationship between the law of treaties and the law on state responsibility were met by the Court with a succinct statement that the scope of the two branches of intemationallaw is distinct, an issue to which we will return in Section VII. We will review how the Court dealt with Hungary's (A) and Slovakia's (8) respective conduct before looking at the problem of intersecting wrongs (C) we will also .look into the legal consequences arising, under the law on state responsibility, from the Court's findings (D). A.Hungary's Suspension and Abandonment of the Works for which it was attributed Responsibility under the 1977 Treaty In order to justify its conduct Hungary essentially relied upon the existence in 1989 of a state of ecological necessity. At one stage of the proceedings Hungary also even invoked violations by Czechoslovakia prior to 1989 by its refusal to take account of ecological dangers, and its inadequate approach to conducting the necessary research. Later these alleged violations were reasoned on the basis of the state of necessity . The Court observed that the invocation of the state of necessity could by definition only be made within the scope of the law on state responsibility; a justified invocation would mean that Hungary would not incur state responsibility. The state of necessity, as a ground for precluding wrongfulness both recognized by customary law and reflected in Article 33 of the ILC-Draft Articles, can only be invoked in exceptional circumstances. The relevant basic conditions contained in the Draft reflect customary law and were successively examined by the Court. This is obviously an important statement by the Court, in its first ruling on the matter in modem times. The fact that the concerns expressed by Hungary for its natural environment in the region affected by the Project related to an essential interest of the State has already been mentioned. This statement should be welcomed. The verification of the existence of the other conditions required to invoke the state of necessity was, however, a more complex process . The condition that the State has to safeguard an essential interest against a "grave" and "imminent" "peril" comprises three constituent elements which are necessarily interrelated, and this must be reflected in the verification of the fulfilment of the conditions in practice. The Court made it understood that both the elements "imminence" and "gravity" have an effect on the way the "peril" must be verified. The mere apprehension of a possible peril is insufficient as imminence goes far beyond the concept of a possibility. IS A long-term peril might however be considered to

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be imminent, provided its realization is certain and inevitable. In this respect the Court went further than the ILC. A real grave and imminent peril must have existed in 1989 and the measures taken at the time must have been the only possible response the burden of proof rested upon Hungary. The Court examined the different situations at the various sites of the Project. The putting into operation of the upstream reservoir at Nagymaros did not cause an imminent peril and the gravity was also lacking. As to the lowering of the riverbed downstream at Nagymaros, the peril had already materialized to a large extent and moreover other means to deal with it were available to Hungary. The peril in the Gabcikovo sector might have been grave, but the Court considered it to be insufficiently clear to be imminent, even in the long-term. And once again the Court was of the opinion that Hungary could have resorted to alternative means. Judge Herczegh recalled the provisional nature of the measures and this the Court should have taken into consideration as a mitigating circumstance. With regard to both sites the Court declined to determine the possible gravity of the perils involved, as it considered them to be not sufficiently established at the relevant time, nor to be imminent. This should be regretted especially because gravity by nature is determined by the particularities of each situation which gives rise to the invocation of the state of necessity in the first place. The fact that the Court did not express itself on the gravity undoubtedly had to do with its unwillingness to take a stand on the environmental impact of the Project, beyond an admission that the impact was considerable." The Court added that Hungary was probably aware of the situation as it was known at the time of the conclusion of the Treaty given the available information; however the built-in mechanism of flexibility was there to ensure the continuous need to protect the environment was satisfied. The Court also referred to Hungary's inconsistent conduct when it first requested a slowing down of the Project and later when scientific knowledge was more advanced, to call for an acceleration. In doing so Hungary had precluded itself from successfully invoking the state of necessity because it had contributed to its alleged occurrence. Given the conclusion it reached on the state of necessity, the Court saw no need to examine the other arguments advanced by the Parties." The finding of the Court that there was no need to consider the impact of the act on an essential interest of the other State is striking and contrasts with the ILC's position, that the conditions for the state of necessity must "coexist". The Court's finding is all the more striking as there is no reason whatsoever not to consider Czechoslovakia's ecological concerns as being an essential interest of the State, as this flows directly from the integrated and joint character of the Project. States looking for circumstances precluding wrongfulness could be tempted to focus more on the first basic conditions of Article 33 (l)(a) to the detriment of the other State's essential interest.

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Finally it should be noted that the temporary, provisional and reversible nature of the state of necessity did not receive adequate attention in the Court's reasoning. B. The Proceeding to and the putting into Operation of the "provisional solution" by the Czech and Slovak Federal Republic The first argument which was invoked by Slovakia to justify its action related to the principle of approximate application in the 1977 Treaty which has been referred to above in Section III, paragraph G). The second argument related to its duty to mitigate the damage resulting from Hungary's prior wrongful conduct. In the alternative, Slovakia argued that the putting into operation of Variant C was to a countermeasure. Hungary viewed Variant C as a material breach of the Treaty and as a violation of other conventional obligations and applicable rules of general international law. The duty to mitigate damages was connected with the quantification of loss. Finally Variant C in particular did not fulfill the condition of proportionality required in order to qualify as a countermeasure. The Court recalled the request by the Parties under the Special Agreement for it to decide whether Czechoslovakia "was entitled to proceed in November 1991" to Variant C and "to put (it) into operation from October 1992". 1. The preparatory work carried out by Czechoslovakia on its own territory before October 1992 could have been abandoned at any time and did not predetermine the final decision taken. Accordingly the Court did not consider that this conduct of a preparatory character constituted a wrongful act. By the formulation of the question in the Special Agreement, the Court's majority was drawn towards a line of reasoning which maintained this sharp distinction. The result of the Court's handling of this pivotal issue was that it inevitably determined by the same token the outcome of the analysis of a number of other issues. The inherent intertwinment of the different questions in this case certainly was exarcerbated by the chronology of events. The Court was locked into the litigation strategy of the Parties. Furthermore it did not present its overall view on the interrelation between the separate issues arising within the case, and as a result it was unable to take a more integrated approach to the crucial question of the nature of Czechoslovakia's wrongful conduct. The Court considered Variant C to constitute either a continuing wrongful act, or alternatively an instantaneous act with lasting effects. In both hyptheses this only related to the diversion of the waters of the Danube. Several Judges, induding President Schwebel , disagreed with the view supporting the divisibility of the construction of the works and the putting into operation of Variant C. However, mainly as a result of the structure of

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the operative part of the Judgment they had to vote on, this did not necessarily lead all these Judges to draft a Dissenting Opinion. All but one of these Judges reached the opposite conclusion that Variant C was illegal from the outset, although their individual reasoning varied. Judge Oda considered Variant C to be lawful and rejected the distinction because the plan to divert the waters of the Danube was the essence of the Project. The reasons put forward against the distinction were drawn from logic (the ultimate objective of any construction of public works is its operation) - the ILC-Commentary immediately following the part quoted by the Court in paragraph 79 (only the actual drawing and planning of Variant C could be rightfully considered to be "travaux preparatoires"), and the applicable law of the 1977 Treaty (preventing the Parties from defeating its object and purpose and from committing open violations or serious breaches). Czechoslovakia's action with respect to Variant C constituted a continuous wrongful act under Article 25 of the ILC-Draft Articles. There was no doubt about Czechoslovakia's intention to go it all the way, and consequently both the construction and the putting into operation were wrongful (judges Ranjeva and Fleischhauer). Whatever qualification was given to Variant C under any of the three types of Article 25, the illicity of the diversion of the water of the Danube extended retroactively to all the previous stages of the chain of conduct and acts (Iudge Bedjaoui). In a Persuasive opinion Judge Bedjaoui argued that the sovereign decisions States were entitled to take on their own territory had to be assessed in the light of their treaty commitments. Any conduct had to be completely neutral vis-a-vis the general economy of an applicable treaty. The first step of Variant C - the construction of the works - should therefore not considered to be indifferent because it modifies, in a substantial way, the pre-existing conventional obligation to build a dam at Dunakiliti and to obstain from constructing one at Cunovo. One is bound to agree with Jugde Bedjaoui when he pointed out that by its salami tactic the Court compromised all the efforts as to continuous, composite or complex illicit acts in doctrine", jurisprudence and the ILC. Therefore it is difficult not to consider the Court's approach to be too permissive in its elevation of the threshold beyond which the illegality of any of these types of wrongful conduct could be successfully invoked. The Court's position could hardly be viewed as a disincentive for a State considering the preparatory or initial stages of presumably illegal conduct. 2. The fundamental characteristic of the 1977 Treaty was the joint nature of the investment: unilateral action was thus ruled OUt. 19 Furthermore the Court pointed out that the appropriation by Czechoslovakia of more than 80% of the waters of the Danube, essentially for its own use and benefit, was incompatible with the legal status of the Danube as an international watercourse and as an international boundary river.

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In the Court's opinion, Hungary's refusal to continue the joint operation did not result in the loss of its right to an equitable and reasonable share of the resources of an international watercourse. Furthermore the Court concluded that the putting into operation of Variant C was an internationally wrongful act because it violated certain of the Treaty's express provisions. 3. As a result of this previous finding the Court saw no need to examine the duty to mitigate damage - an injured State would not be entitled to claim compensation for the avoidable part of the damage if it has failed to take the necessary measures - since it could eventually provide a basis for the calculation of damages but it could never justify an otherwise wrongful act. 4. The Court relied upon its own and other judicial precedents and the relevant Articles 47 to 50 of the ILC-Draft Articles - without however ruling on the condition laid down in the ILC-Draft Articles reflecting customary law as it did in other parts of its Judgment - when it, rather succinctly, examined the argument that Variant C - limited to the putting into operation - could qualify as a countermeasure. The condition that a countermeasure must be a response to a previous wrongful act of another State was fulfilled, because the Court found that Hungary's suspension and abandonment of the works constituted a wrongful act. Judge Skubiszewski succinctly stated in this regard that as a matter of fact there would not have been any Variant C at all without Hungary's prior conduct. Judge Bedjaoui argued in a similar way that it was thanks to the chronology of events that Variant C became a riposte. As Czechoslovakia had repeatedly requested Hungary to resume the performance of its Treaty obligations, the condition of prior appeals for discontinuance of the previous act or to make reparation was also fulfilled in the Court's oplnion." Finally the Court examined whether the countermeasure was commensurate to the injury suffered, taking account of the rights in question. The Court's description of this condition does not coincide entirely with the formulation of Article 49 of the ILC-Draft. The Court found that the unilateral assumption by Czechoslovakia of control of a shared watercourse, constituted a deprivation of Hungary's right to an equitable and reasonable share of the resources of the Danube and failed to respect the required proportionality. The Court failed to examine the proportionality of the respective gravity of the prior internationally wrongful conduct to the countermeasure. Neither did the Court examine whether the countermeasure was commensurate with the injury suffered by the State taking the countermeasure. In contrast such a finding was made when the Court had to assess the legal effects of the notification of the termination of the 1977Treaty by Hungary. In Judge Vereshchestin's opinion the Court should have paid attention to a number of these qualitative factors.

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The fact that the Court did not carry out this further examination should be viewed against the background of the Court's refusal to enter into any analysis of the respective gravity of the intersecting wrongs. The Court's performance of the proportionality test will not discourage States when they are considering taking countermeasures. The Court's contribution to the current debate on the whole issue of countermeasures could have been more substantial. As part of the legitimate objective of further reducing resort to countermeasures, a more thorough and balanced proportionality test by the UN's principal judicial organ would have been most welcome indeed. As the Court considered Variant C to be a disproportionate countermeasure, it felt that there was no need to examine its purpose and its reversible character. C. The Problem of Intersecting Wrongs

The problem of intersecting wrongs, i.e. the simultaneous or successive violation by two States of an identical or equivalent, reciprocal or joint obligation, incumbent upon them by the application of one particular rule or set of rules, of a conventional, customary or general nature, permeats the whole dispute between Hungary and Slovakia. First the intersecting nature of their wrongful conduct caused serious complications in the operation of the relevant norms under the law of treaties which deal with the right of suspension and termination and the invocation of the principle of approximate application. Secondly the intersecting nature was inevitably bound to influence and codetermine the consequential approach within the law on state responsibility: the problem of causality within a chain of events, omissions and actions; the examination of the lawfulness of countermeasures; and of course the question of reparation. Thirdly, the problem of intersecting wrongs was further exacerbated where there was reason to argue that they were not necessarily of an equivalent or similar gravity. Once again one finds the Court sticking to the road laid out before it by the litigating Parties and being unwilling to embark upon an overall presentation of its comprehensive views on the case. The Court was divided as to whether, when and how this intersecting character could play a (decisive) role in its handling of the abovementioned questions. The disagreement easily came to light in the opinions of the individual Judges although this was due to the way the Court's majority subdivided the paragraphs of the dispositif. This is not necessarily and fully reflected in the result of the vote. The Court did not accept for instance that reciprocal wrongful conduct by both Parties to a bilateral Treaty could lead to its unilateral termination. On the other hand the Court could not disregard that the intersecting wrongs had

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contributed to the present factual situation. The very phenomenon of intersecting wrongs led to the Court's observation that the issue should preferably be solved by a zero lump-sum agreement. Judge Ranjeva was correct in pointing out that the bilateral approach to the problems resulted inter alia from the way the conduct of the Parties had been divided into two separate parts within the first paragraph of Article 2 of the Special Agreement, thus creating the illusion of a quasi-mechanical relationship between the respective conduct of the Parties. The sequence of events did not justify a bilateral or a linear approach. Proving respective wrongs does not necessarily establish the necessary causal link, which, moreover, may fade away gradually. Judge Bedjaoui would have preferred the Court to describe a more complex reality than it did. A similar conclusion as was reached on the issue of a continuous wrongful act appears to be also reached here. The overall threshold for State conduct is elevated again as a result of the Court's approach: once States are locked into a chain of successive and intersecting wrongs which, helped by a complex chronology, the Court will apparently not be so ready to analyze in a surgical way. The margin of permissivity as to the degree of gravity States can allow themselves in the pursuance of wrongful conduct, is bound to be expanded by this Judgment, at least according to the perception of states, which is known to playa significant role in the national decision-making processes. As far as the law on state responsibility is concerned, the impact of the Judgment could very well tum out to be counterproductive in the sense that States may be more easily tempted to overstep the limits imposed by international law, because in several respects the secondary rules of state responsibility might be perceived to be less stringent than before. D. Legal Consequences arising from State Responsibility The respective claims of the Parties as to the consequences flowing from the alleged wrongful conduct have been summarized by the Court in paragraphs 125-129 of its Judgment to which we refer here. The Court opted for a succinct approach when it turned to the legal consequences of the internationally wrongful acts committed by the Parties. It is important to recall that the Court - having found that the 1977 Treaty was still in force - clearly ruled that the relationship between the Parties was governed, above all, by the applicable provisions of that Treaty as lex specialis. The rules on state responsibility formed part of the overall governing legal framework, but as lexgeneralis. The Court also clearly sustained the principle ex injuria ius non oritur. Consequently the factual situation flowing from the reciprocal non-compliance by both Parties had to be placed within that treaty relationship, which was not only to be preserved but should also be developing. Judge Bedjaoui aptly observed that these factual situations were different in nature as a result of the difference in intersecting wrongs. The new content of

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the Treaty following the post-adjudicative negotiations, will serve to legitimate these factual situations, without leaving them unpunished or not subject to compensation. It was in no way the Court's intention to legitimize the relevant irregularties. The Court considered that a resumption by the Parties of their co-operation in the utilization of the shared water resources of the Danube, and an equitable and reasonable implementation of a multi-purpose programme, (in the form of a coordinated single unit, for the use, development and protection of the watercourse) would wipe out "as far as possible" the consequences of the illegal acts. The Court was asked to indicate only the basis for and not the quantum of the damages to be paid. Slovakia's succession to Czechoslovakia in respect of the rights and obligations relating to the Project operates both actively and passively regarding the issue of damages, as far as Czechoslovakia's involvement is concerned . The Court acknowledged that both Parties had suffered considerable financial losses as a result of their respective internationally wrongful conduct; this the Court recalled without embarking on any comparison of the respective gravity of that conduct." The intersecting nature of the wrongs led the Court to its observation that a mutual renouncement of all financial claims and counter-claims for compensation would constitute a satisfactory solution. The different issue of settlement of accounts for the construction of works had to be resolved in accordance with the 1977 Treaty and its related instruments. Figuring prominently in the Separate and Dissenting Opinions is the persuasive argument that the Court should have evaluated the respective gravity of the wrongful conduct of the Parties and adjust accordingly the legal consequences attached to it (Judge Herczegh). In this respect, the Court gave the impression that it considered the conduct of the Parties to be equivalent (Judge Koroma). Such an evaluation undertaken by Judge Herczegh, while Judge Oda drew a further distinction between the separate wrongful acts committed by Hungary; a separate assessment was also called for by Judge Herczegh. VI. The Court's handling of the Case: a functional Analysis A. General Picture Constraints of time and space make it imperative to leave untouched the more procedural aspects of the Court's handling of the case. The fact that the dispute been brought before the Court by way of a Special Agreement was of course a major factor in the overall approach taken by the Court.

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The structure of the Agreement - the actual formulation of the questions and the separate way they were presented - and the subsequent litigation strategy adopted by the Parties rendered the task of the Court both complicated and challenging. The rigidity with which the Court respected the structure of the Special Agreement should not have prevented it from giving, at the beginning of the declaratory part of its Judgment, a summary of its own understanding of the case and its subsequent modus operandi. The interrelationship between the various branches of international law was bound to be pivotal in the handling of the case, and was an additional reason why the Court should have given such an overview. Concerns about transparancy, persuasiveness and predictability for future litigation in similar cases would also justify the giving of such an overview. Divergent views amongst the Judges on this overall approach could largely explain the absence of the above - this is further corroborated by the criticism which the Court's majority's decision on the divisibility and formulation of the different issues attracted in several Opinions . The Court's legitimate concern to achieve the largest possible consensus on the separate issues involved, perhaps resulted in this case in too much caution, thereby depriving both the Parties and the international (legal) community at large, of the Court's overall opinion on the complex matters raised. Such a declaration would also respond to the legitimate calls of recent years for more elaborate judicial reasoning, and, to a lesser degree, would also perform the educational function of the Court, as it was called by the late Judge Lachs. In recent years the above mentioned concerns have regrettably given way to the aim of having concise judgments. This last remark does not affect the Court's right (which it also exercised in this case), to leave untouched some questions or not to dwell on some others. One must, however, distinguish between different situations in this respect. There are parts of the Court's reasoning where the consistency of its internal logic would not call for further elaboration of such questions as the applicability of the 1969 Vienna Convention of the Law of Treaties, or whether the term "object" in Article 61 of that Convention also covers a legal regime. In other parts of the Judgment this lack of elaboration did not enhance the overall consistency of the Judgment. An example of this is where the Court refers to the scope of the law of treaties and the law on state responsibility, this contrasting to the lengthy arguments devoted .to this issue by the Parties. The lack of a general statement by the Court in the case, could very well be interpreted as a manifestation of its determination not to render more difficult its contribution to the settlement of the dispute. And finally there were occasions where the Court was of the opinion that no useful purpose would be served in examining further aspects of a question, given the fact that it had already given an answer on, for instance, other conditions of legality; examples have been referred to in previous sections.

790

B. The Court's Attitude towards the Parties In cases brought before the Court by way of a unilateral application, the principle of equality between the Parties before the Court is of essential importance and is safeguarded by a set of relevant provisions in the Statute and the Rules of the Court. This is especially in cases where the Respondent chooses not to appear. The same principle naturally applies in cases brought by Special Agreement, and does not only require that the above principle be upheld, but that it should also be seen by the Parties as being upheld. An even-handed and balanced way of handling a case is of crucial importance for the continued confidence in the Court of its potential clientele. Any perception (even if unjustified) on the part of the Parties that this high standard of impartiality had not been maintained, should be avoided at all costs. Otherwise "le fragile equilibre consacre dans Ie compromis pourrait etre remis en cause". Z2 Looking at the Judgment from this particular point of view one could not but fail to notice throughout it examples of formulations and expressions which taken together eventually could contribute to one of the Parties having such a perception. Another question altogether is whether the Court's decision on the merits of the case, through its analysis and reasoning, went far enough to convincingly remove that perception. For examples the Court did acknowledge the impact of the profound political and economic changes which had taken place in Central Europe in 1989. The Court was aware of the many problems that the new Governments in both States were facing, and of the ensuing difficulty in co-ordinating different points ' of view during the transitory phase of the changes taking place in Hungary in 1989. It was, however, critical of the successive changes in position during 1989. In assessing the Parties' conduct during the unfolding of the dispute, the Court - admittedly having to start from the facts and evidence before it - could perhaps have been more careful in its choice of wording, when it expressed its legal opinion on the Parties' respective conduct. Hungary's decision to suspend and abandon the works could, according to the Court, only be interpreted as an expression of its unwillingness to comply with some of the provisions of the 1977 Treaty while negotiations were underway. In subsequent negotiations Czechoslovakia's repeated calls upon Hungary to resume performance of its obligations were met by steadfast refusal. Although the Court did not go so far as to call into question the good faith of either Parties, it might have created the impression that it implicitly considered good faith to have been lacking to a greater extent on the part of Hungary. This was despite its acknowledgment that the stalemate of the negotiations resulted from the diametrically opposed positions of the Parties." Moreover, while the failure of the Parties to agree on a means for the protection of the environment could not be solely attributed to one Party, and while the Court did not find sufficient evidence of a consistent refusal by Czechoslovakia

791

to consult with Hungary, the Court did not fail to point out that Hungary's prior conduct was not conducive to fruitful negotiations. The wording of the Court in drawing the even-handed global picture of the conduct of the Parties during the negotiations, could contribute to the perception that Czechoslovakia's behaviour was looked upon in a more favourable light . But was the Court even handed in its treatment of the conduct of the Parties, when it stated that Hungary could have resorted to alternative means in the situation it faced to suspending and abandoning the works, while it seemed to accept, without explicitly saying so, that Czechoslovakia had, in fact, no alternative but to proceed with Variant C, bearing in mind that it expressed its awareness of the serious problems Czechoslovakia encountered as a result of Hungary's prior conduct? The continuing negotiations were a point of aggravation in the Court's evaluation of Hungary's suspension and abandonment of the works, whereas the same point did not enter into the Court's evaluation of the lawfulness of the construction of Variant C. More importantly, it was not taken into account in the Court's assessment of the lawfulness of the putting into operation of Variant C. In this regard the Court could have examined, given the presence of the element of potentially irreversible damage, the conduct of both Parties in the light of the principle of good faith, as this may restrain "acts of deliberate provocation or attempts to establish a fait accompli capable of prejudicing the outcome of the negotiations.?" The even-handedness of the Court's approach could also be called into question because, as Judge Bedjaoui pointed out, the Court did not demonstrate that the stages before the diversion of the Danube's water by Czechoslovakia did not affect the rights and interests of Hungary. C. The Evidence before the Court

The Court accepted an invitation, extended to it by Slovakia and later supported by Hungary, to visit a number of locations along the Danube to exercise its functions with regard to the obtaining of evidence . The visit took place between the two series of public hearings. But apart from the brief mention of the fact that the visit actually took place there is no explicit trace in the Court's Judgment of any clear or explicit impact of that visit upon the Court's findings. The Court subsumed the evidence gathered on that occasion within the global body of evidence submitted to it by the Parties. This was at least to the extent that the visit did not cause the Court to refrain from determining which of the Parties views on the ecological consequences of the Project, was scientically better founded by the scientific material placed on record before it." At the general level the Court had no difficulty in holding that the scientific reports provided it with abundant evidence that the Project's impact and implications for the environment were considerable.

792

Whether the Court would have reached another conclusion if it had the text of the JCP in its complete form before it remains an open question, since the Court did not display judicial activism by requesting the Parties to provide the Court with the full text. As regards the future conduct of the Parties the Court's finding that the Parties should take account of the environmental effects of the continued operation of the remainder of the Project, necessarily involves further up-todate scientific studies under current standards of environmental law. VII. General Aspects of International Law .The high degree of political sensitivity engendered by the dispute, the difficult negotiations which eventually led to the conclusion of a Special Agreement, and the general importance, going well beyond the particularities of the case, of the legal issues involved, were decisive factors in bringing the case before the full Court. The litigation strategy of the Parties demonstrated that the case focused on general aspects of international law encompassing a wide range of issues of the utmost importance to the international community at large: the continuation of the Court's liberal approach towards the conditions for a rule or norm to belong to customary law, the interpretation of a treaty in the light of subsequent developments of international law, the relationship between applicable treaty law and general international law (and the degree of attention paid to the latter by the Court) and the conciliatory aspect of international adjudication as regards the future conduct of the Parties. All the above deserve separate study. The relative brevity of the actual Judgment - compared to the 10.000pages of pleadings - and its structure of rigidly following the questions put before the Court in the Special Agreement - could easily leed to the erroneous belief that the case is clear-cut. We have already pointed out that the real situation is entirely different, as could also be seen from the Opinions of individual Judges. The case centered primarily on the interrelationship of various branches of international law. The divergence of views amongst the Judges and the feeling of dissatisfaction when reading the Judgment were undoubtedly due to the Court insufficiently taking into account this major question. It was not the first time that the Court faced this problem, but perhaps never before had the particularities of the case made it such a prominently crucial issue for the actual outcome of the proceedings. The complex issue of the relationship between different branches of international law can of course be approached from the position of overall concern for the unity of international law, because of the respective ways the various branches bring into being new norms, provide for the settlement of disputes and regulate problems of non-compliance." But this issue is still different from the operational intercourse between different branches of international law as viewed from a systemic point of view.

793

The law of treaties, as codified and reflected in the 1969 Vienna Convention, contains rules which are predominantly (albeit not exclusively), of a procedural nature, and which govern the different stages and events which occur in the lifetime of an inter-state treaty, and provide the necessary mechanisms to take care of these occurances. The law on the protection of the environment consists of a growing body of primary rules regulation the conduct for States and other actors (obligations of conduct, obligations of performance and obligations of result). In its current state of development no comprehensive global treaty containing the fundamental principles of this branch has yet become available. The law on state responsibility, as codified and reflected in the ILC-Draft Articles provided States, and to a limited extent also other subjects of international law, with secondary rules to come into operation as soon as the primary rules of international law, whatever their origin, are violated. The fact that these three branches, different in nature, have a distinct scope has been underlined by the Court and is not controversial, but the matter does not end there. Indeed the express reservation in Article 73 of the 1969 Vienna Convention on the Law of Treaties was made in order to prevent any misconception as to the interrelationship of the law of treaties and the law on state responsibility. The reservation was furthermore based upon considerations of logic and of completeness of the Draft Articles. The ILC nevertheless admitted that State responsibility might have an impact on the operation of certain parts of the law of treaties. And that is exactly what happened in this case, a point succinctly but persuasively stressed in President Schwebel's poignant Declaration. Since the 1977 Treaty did not claim in any way to provide a self-contained regime, serious difficulties arising in the course of its implementation were bound to call into question the operational limits of Article 73. More than a quarter of a century ago Paul Reuter already pointed out: "Ce n' est done que d'une maniere toute relative que l'on peut separer les problemes de responsabilite de l' expose du droit des traites: la position prise a ce sujet par les redacteurs de la Convention de Vienne... n'a done qu'une valeur de directive .?" The inherent systemic logic of international law requires that the distinct scope of different branches of international law should not be used in a counterproductive way, especially not when their raison d'€tre is not in the first place (or not at all) to be found in providing primary rules, but on the contrary, to consist of rules which are above all, of the utmost importance for the overall functioning of international law. The litigation strategy of the Parties was an unambiguous invitation to the Court to overcome this difficulty by adopting a comprehensive and integrated approach to the different branches of international law, because that is what reality would demand. Such an approach should not be rendered impossible by the mere existence of Article 73 which is further evidenced by the correct assumption that, in practice, States, when considering conducting themselves in a way which might not be in conformity with a treaty obligation, look simultaneaously for grounds

794

to argue for the suspension of the operation of the treaty and for circumstances precluding wrongfulness in order to avoid state responsibility altogether. the other hand a State who is confronted with a (material) breach of a treaty , not establishing a self-contained regime, will equally use the procedural mechanisms to respond under the law of treaties and make a selection of the arsenal of rights available to an injured State as derived from the law on state responsibility. In 1984 Ian Sinclair correctly observed that "the law of treaties touches upon and interacts with every other branch of general international law.?" This increasingly being the case does not take away from the fact that the law on State responsibility not only "touches and interacts" with other branches of general international law, but constitutes the decisive body of rules governing non-compliance with any other legal obligation, and thus "permeats" all sets of general, conventional and customary primary rules. The law on state responsibility occupies a quasi-constitutional place in the international legal order. The operational permeability of these two branches of international law is, in our opinion present in both sets of rules: Article 60 (1) of the Vienna Convention of the Law of Treaties constitutes an institutionalized countermeasure in a bilateral treaty relationship, whereas Article 33 (2)(b) of the ILC-Draft Articles clearly envisages inter alia a bilateral treaty where the invocation of a state of necessity is not even implicitly ruled out. The conclusion of a bilateral treaty becomes the lex specialis applicable between the two Parties, but it does not by that very fact exclude the application to that same treaty relationship of the rest of international law, - not of primary rules and certainly not - except in cases of a self-contained regime - of operational rules of prime importance for the systemic compliance with and the survival of the international legal order. The inherent interrelationship of the law of treaties and the law of state responsibility is further corroborated by both the procedural and substantive conditions relating to a resort to countermeasures which are laid down in Articles 48-50of the ILC-Draft.29 The issue of Article 73 was also raised by France and New Zealand in the course of the Rainbow Warrior arbitral proceedings. New Zealand claimed the exclusion of substituted or additional grounds for the suspension or termination of a bilateral treaty under the law on state responsibility, while France insisted on the operational exclusion of the law of treaties as far as the consequences of breaches of treaties are concerned . At issue, at the time was, as in the present case, the fundamental nature of the law on State responsibility as one of the cornerstones of the international legal order. The law on State responsibility - applicable irrespective of the origin of the obligation whose violation is giving rise to it - claims precedence stemming from its particular role of underpinning the whole system of international law, without however degrading the proper but different instrumental law of the law of treaties. It is known that the Arbitral Tribunal

On

795

considered both branches to be relevant and applicable although in a different way." During a conference held in London on 14 November 1997, Lady H. Fox persuasively put the problem of this relationship in a nutshell: How can Hungary's conduct relating to the non-performance of its treaty obligations be judged by the rules of State responsibility when necessity is not a ground for termination or a defence to a breach of a treaty? How can Slovakia claim an unilateral right to proceed to Variant C as a countermeasure, when this action constitutes a breach of the Treaty? The unwillingness of the Court to further examine a question so vital for the continuous and effective functioning of the international legal order past its finding that the scope of the branches are distinct, has to be regretted, since the relationship between the two branches of international law is a complicated one indeed. In this regard it is one of the Court's dicta in its 1971 Namibia Opinion which should have shed some light: "...an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation...the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore" .31 Although the Court followed this approach with regard to the law on the protection of the environment, it should have acted in a similar way when the interrelation between the law of treaties and the law on State responsibility had to be thoroughly examined . That the outcome of the proceedings would then have been different has been indicated throughout this study. VIII. Concluding Remarks

The final test in the evaluation of the Court's performance of its judicial function in any particular case is of course whether the Court's intervention contributed to the settlement of the dispute as it was presented by the Parties, on the basis, in this case, of a Special Agreement. A number of features of the Hungary/Slovakia case should be kept in mind when assessing the Court's Judgment. Although the case was ultimately brought before the Court by Special Agreement, one should not ignore the fact that the possibility to unilaterally seize an arbitral tribunal or the Court had already been suggested by Hungary back in November 1989. The fact that Hungary actually filed a unilateral Application three years later had a continuous impact on the litigation strategy of the Parties and on the presentation of the questions before the Court. This was only strenghtened by the option of an unilateral seizure of the Court in the post-adjudicative phase as provided for in Article 5 (3) of the Special Agreement. In the same vein (of a mixed unilateral/joint case), one should qualify the following observation by Marion: "Dans la mesure oti n'y a ni demandeur, ni defendeur, il n'y aura, en prindpe, face a la decision rendue, ni vainqueur, ni

n

796

vaincu.?" Also a further question may be raised as to whether the Parties will share this same perception, given the observations which have been made earlier regarding to the Court's attitude towards the Parties (see supra, Section VI, paragraph B). A second aspect of the case is related to the impact of a Judgment which may in general be weakened as soon as the Parties establish a link between the Judgment and the post-adjudication negotiations: when its efficacity is conditional upon the subsequent conclusion of an agreement by the Parties, the Judgment may prove to be insufficient in the solution of the dispute. This effect is exacerbated by the Court admitting that the Parties may find an agreement which departs from its ruling." Although the Parties declared in a superfluous way their willingness to accept the Court's Judgment as final and binding upon them and that they would execute it in its entirety and in good faith, negotiations on the modalities of that execution had to follow . The Court provided the legal framework for these negotiations but it was not for the Court to determine the final outcome of such negotiations. It becomes clear from the dispositif that the Parties could agree otherwise as far as the establishment of the joint operational regime (2 C) and the zero compensation issue (2 D) are concerned. It is up to the Parties to take the necessary measures to ensure the achievement of the objectives of the 1977 Treaty, but in accordance with such modalities as they may agree upon (2 B).34

A third observation is linked to the dilemma facing the Court in any case brought by Special Agreement: it must apply the compromis without destroying the will of the Parties and at the same time without damaging its judicial function." In this case the Court was certainly successful in the first regard, but, as we indicated earlier, adopted too cautious an approach both in not performing an integrated analysis of the different questions submitted to it and consequently of the different branches of international law. The strict reciprocity of bilateral treaty obligations was mitigated by the integrated and indivisible nature of the Project, and this should have affected the Court's views on the right to suspend and terminate the 1977 Treaty and the resort to countermeasures. These points could have been taken more fully into account by the Court had it examined the respective gravity of the intersecting wrongs. And although Judge Herczegh's finding of a contradiction between the "declaratory" and "normative" part of the Judgment perhaps goes too far, one could easily agree with Judge Ranjeva that the issue of intersecting wrongs should not only have played a role in the prescriptive but also in the declaratory part of the Judgment. When the Court occasionally took a step towards an integrated approach it was not very consistent in doing so: the conclusion it reached as to the state of necessity resulted in the Court seeing no further need to examine Czechoslovakia's alleged violations before 1989 as a ground for suspension of the application of the 1977 Treaty by Hungary, although this was a direct result of Hungary changing its litigation strategy. In other parts of the Judgment the question of an even-handed attitude towards the Parties came also into play.

797

The Court did not examine Czechoslovakia's unilateral action in its analysis of the fundamental change of circumstances invoked by Hungary, while on the other hand the premature nature of Hungary's notification was inevitably linked to the non-continuous character of the wrongful act Variant C. The Court did not take the opportunity to present its integrated view on the different branches of international law and thus failed to make a substantial contribution to the conceptual structure of the system of international law. The final outcome of the Court's findings would perhaps not have been different, but such an approach would certainly have been more persuasive, all the more so since both the law of treaties - by a narrow application of the exceptions to the rule of pacta sunt servanda - and the law on State responsibility - by restricting resort to countermeasures and the importance it attaches to the restitutio in integrum - attempt to preserve existing treaty relationships as far as possible", and this in fact comes close to putting into practice the principle of approximate application of a treaty . The too rigid separation of the different branches followed by the Court could raise the question of whether the fairness of the overall result of the Court's finding had become jeopardized. There is no doubt that the Court intentionally went for the "economy of decision" instead of the "exhaustiveness of judicial pronouncements?" and this brings us to the fourth concluding remark. The frequent and usually unreserved reference by the Court to the work of the ILC in the area of State responsibility as well as in other areas, undoubtedly is a significant contribution by the principal judicial organ of the UN to the recognition of the ILC's longstanding activities in the field of codification and the progressive development of international law. However this must be counterbalanced given the Court's reluctance to draw operational consequences from the pivotal role of the law on State responsibility for an integrated handling of the case. Coupled with the Court's rejection of Variant C being a continuous, complex or composite wrongful act, this can only confirm the first impressions that the Court's concern to preserve the 1977 Treaty as far as possible prevented the thorough examination called for, by the litigating Parties and individual Judges . An alternative, integrated handling of the case would thus have also responded to the legitimate calls for more extensive judicial reasoning in the Court's written testimony of its search for the settlement of the dispute the Parties had been willing to submit to it. Finally, the Preamble of the Special Agreement makes clear that submitting the differences of the Parties to binding arbitration was an alternative option. Given the outcome of the Rainbow Warrior Arbitration facing the same systemic question, we can only speculate about whether the Court was the most appropriate forum for the settlement of this dispute and what the result would have been of an arbitral procedure. A different question which is almost impossible to answer at this early postadjudicative stage, is the impact this Judgment will have on the future willingness of States to submit similar disputes to the Court. This consideration

798

should perhaps have been more fully taken into account by the Court when it decided which path to follow in this particular case. Notes:

2

3

4 5 6

7

8

9

10

11 12

In the Court' s unofficial communique 97/9 REV.Issued on 19 September 1997the case was described as having "been the subject of widespread public interest and concern." See the recent study by Marion, L.C (1995), La saisine de la CLJ. par voie de compromis, R.G.D.I.P., pp . 258-300. A unilateral Application by Hungary, presented on 23 October 1992- just two weeks after Hungary had accepted the Court's jurisdiction under Article 38, paragraph 5 of the Court's Statute. After the Special Agreement was notified to the Court, Hungary informed the Court that it considered this Application to be now without object and lapsed . Under these Articles the Parties undertook, when carrying out their obligations, to ensure that the quality of the water in the Danube was not being impaired, that nature was protected and that new environmental considerations would be taken into account when they would agree upon the means to be specified in the JCP. Nor did Judges Kororna, Oda and Herczegh. Alleged violations of the Treaty prior to 1989 by Czechoslovakia were first presented by Hungary as an independent ground for the suspension and abandonment of the works, but they were later raised as the elements leading to the ecological state of necessity. Slovakia denied the allegations. This finding of the Court accomodates two concerns expressed by Thirlway: with regard to the possibility that events which the Parties foresaw might tum out to have an unexpected effect on their obligations and the repercussions for the intertemporal principle of change in the law, under certain conditions, being considered as res. (Thirlway, H. (1992), The law and procedure of the International Court ofJustice (1960-1989) Part four, B.Y.I.L., pp. 1-96,at p. 81. In his Dissenting Opinion Judge Herczegh - when addressing the argument of a state of ecological necessity - examined the question of the availability of alternative means: this the Court also analyzed (see infra). He admitted that these alternatives were at Hungary's disposal, but their utilization would have radically changed the scope of Hungary's obligations in the sense of Article 62 of the Vienna Convention. Judge Herczegh further criticized the Court for not having undertaken an analysis of these consequences. In the alternative legal qualification of the prior and subsequent conduct of Czechoslovakia, Hungary was considered to be entitled to terminate the Treaty (Judge Herczegh). The same reasoning was followed by President Schwebel in his Declaration. The diversion of the waters of the Danube was Czechoslovakia's intention (Judge Herczegh) and it was expected and foreseen. To discount the notification because the diversion had not yet happened was viewed by Judge F1eischhauer as a demonstration of extraordinary formalism and contrary to good faith. The premature effect of Hungary's notification should be considered to be remedied on the occasion of the missing event, l.e. the diversion in October 1992. Judge Herczegh was of the opinion that the exception provided for in Article 65, paragraph 2 of the 1969Vienna Convention was applicable, whereas Judge F1eischhauerpointed to Hungary's continuous protest during the preceding six months against unilateral measures taken by Czechoslovakia; Isolating this six day period was contrary to good faith. For almost one and a half years the Parties were unable to agree on the recommendations formulated by a group of experts. They finally managed to conclude a temporary Agreement on 19 April 1995 which lasted for slightly more than two years and was specified to come to an end fourteen days after the delivery of the Court's Judgment. In his Dissenting Opinion Judge Oda added that the provisions to protect the environment should be extended to the Parties' joint relations towards third parties, by virtue of an obligation in general law concerning environmental protection. The works at Cunovo should become a jointly operated unit and the dam at Cunovo should have a similar status . In order to make Variant C compatible with the Treaty and to transform it from a de facto status into a treaty-based regime, Hungary should be associated, on an equal footing in its operation, management and benefits.

799

13 If the "ga omnes character of the obligation to protect the environment were to become part of the body of international law, this would of course affect the lawfulness of projects such as the Three Gorges Dam in China. 14 The condition for prior agreement was approaced in a different way by Judges Koroma and Skubiszewski. 15 Judge Herczegh argued that the element of "imminence" could require a strong probability but that it was impossible to predict the peril with mathematical precision. States could not be expected to wait for the peril to materialize as they are under an obligation to prevent negative effects. 16 In this presentation of the facts the Court clearly also included that the cumulative effects on the river and on the environment of various activities over the years had not all been "favourable" . 17 Judge Herczegh briefly raised the impact on Czechoslovakia's interests of a financial nature, which could easily be compensated. 18 See for instance Pauwelijn, J. (1995), The concept of a "continuing violation" of an international obligation: selected problems, B.Y.I.L., pp. 415-450. 19 Judge Parra-Aranguren added the qualification that information and consultation presupposed a willingness to co-operate and this was lacking, in his view, on the part of Hungary. 20 A valid point was made in this regard by Judge Herczegh when he concluded that in a period of two months the Parties had not exhausted all possibilities to reach an agreement on a mutually acceptable mnodification of the 1977 Treaty. In contrast Judge Vereshchetin considered the negotiations to be fru itless as the objectives of both Parties were diametrically opposed. 21 The reasoning apparently underlying the Court's handling of the legal consequences of the international wrongs was formulated by Judge Rezek when he stated in his Declaration that the question whether the intersecting failures by the Parties manifested themselves in d ifferent ways was irrelevant. 22 Marion, i ,c, op.cit. (note 2), at p. 276. 23 Judge Ranjeva rightly pointed out that every Party pursued objectifs which were not necessarily identical to those of its partner. 24 Thirlway, H., opcit. (note 6), at p. 24. 25 The same applies to the video cassette shown in the course of the oral proceedings. 26 Barnhoorn, L. and Wellens, K. (Eds.) (1995), Diversity in Secondary Rules and the Unity of International UlW, The Hague, Boston, London, Martinus Nijhoff Publishers, 365 pp. 27 Reuter, P. (1972), Introduction au droit destraites, Paris, A. Colin, 238 pp., at p. 184, paragraph 280. 28 Sincla ir, I. (1984), The Vienna Conventionon the Lau: of Treaties, Second Edition, Manchester, Manchester University Press, 270 pp., at p. 244. 29 See also Paul Reuter when discussing the adagium inadimplendi nonest adimplendum: "Qu'il s'agisse du point de vue de 1a convention ou de celu i de la responsabilite, il doit toujours y avoir une certaine proportion entre l'inexecution et ses consequences" (emphasis added), Reuter, P., op.cii. (note 27), at p. 185, paragraph 281. 30 82I.L.R. 499, at p. 549-551. 31 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), AdvisoryOpinion, l .C}. Reports 1971, P: 16, pp. 3132, paragraph 53. 32 Marion, L.c., op.cit; (note 2), at p. 261. 33 Ibidem, at p. 289. 34 It should also be noted, in passing, that the negotiations must be in conformity with newly undertaken obligations by both Parties such as Article 1 of the 1995 Treaty on relations of good neighbourliness and friendly cooperation, R.G.D.I.P., 1995, p. 526. The negotiations would have been easier and more effective if the Court had not based the normative part of the judgment on the inapplicable Treaty in its original form, but on non-contractual rules of general international law (Judge Herczegh). Given the history of the dispute the Court's suggestion that the Parties could profit from assistance and expertise of a third Party certainly was not superfluous. As indicated earlier the readiness of the Parties to accept such assistance was, in the Court's opinion, evidence of the good faith with which they would conduct bilateral negotiations in order to give effect to the Judgment of the Court. 35 Marion, L.c., up.cit., (note 2), at p. 280. 36 Reuter, P., (1985), Introduction au droit des trailt!s, Second Edition, Paris, PUF, 211 pp., at p. 158, paragraph 280. 37 Shaw, M. (1997), referring to Jennings and Lauterpacht respectively in his contribution on The International Court of Justice: a practical perspective, I.C.L.Q., pp. 831-865, at. p. 849.

TABULA GRATULATORIA

CONTRIBUTORS

G.Abi-S~b

Professor of International Law, Graduate Institute of International Studies, Geneva; Member of the Institute of International Law A. Alen Professor of Constitutional Law, K.U. Leuven C.P. Amerasinghe Judge,UN Tribunal; Member of the Institute of International Law Honorary Professor of Law, University of Colombo, Sri Lanka, 1991-1994 Sometime Professor of Law, University of Ceylon, Colombo Director, Secretariat and Executive Secretary, World BankTribunal N. Angelet Lecturer in International Law, K.U. Leuven M. Arsanjani SeniorLegalOfficer, Codification Division, Office of Legal Affairs, UN R. Blanpain Professor of LabourLaw, K.U.Leuven

M. Bossuyt Professor at the University of Antwerp (VIA) Member of the UN Sub-Commission of Prevention of Discrimination and Protection of Minorities Former Chairman of the UN Commission on human rights Honorary Commissioner for Refugees and Stateless Persons Judgeat the Courtof Arbitration (theBelgian Constitutional Court) M.Bothe Professor of Public Law, JohannWolfgang Goethe University, Frankfurt am Main B. Boutros-Ghali Formerly Secretary-General of the UN; Member of the Institute of International Law

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H. Corell Under-Secretary-General for Legal Affairs, The Legal Counsel, UN E. David Professor of International Law, Free University of Brussels E. De Smijter Assistant at the Institute for European Law, K.U. Leuven

Y. Dinstein Professor of International Law and President of Tel Aviv University (Israel) Member of the Institute of International Law R.Dormoy Professor of International Law, University of Paris-Sud (XI), Jean Monnet Chair Director of CECA 92 Director of the DEA of International and European Law M. Eyskens Formerly Prime Minister and Foreign Minister of Belgium Member of Parliament Professor of Public Economics, K.U. Leuven R. Foque Professor of Legal Philosophy at the Law Faculties of the K.U. Leuven and the Erasmus University of Rotterdam B. Graefrath Emeritus Professor of International Law, Berlin H. Gros Espiell Formerly Ambassador of Uruguay, Paris Associate Member of the Institute of International Law G. Hafner Professor of International Law, University of Vienna R. Higgins Judge at the International Court of Justice Member of the Institute of International Law P. Kalshoven Emeritus Professor of International Law, University of Leyden H.P. Kock Professor of Law

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Dean of the Law Faculty of the Johannes Kepler University, Linz Deputy Head of the Institute of Public International Law and International Relations and of the Institute of European Law Co-Director of the Advanced University Studies in European Law P. Kooijmans Judge at the International Court of Justice Associate Member of the Institute of International Law W.Lang Austrian Ambassador, Brussels K. Lenaerts Professor of European Law, K.U. Leuven Judge at the Court of First Instance of the European Communities, Luxembourg R. St.J. Macdonald Judge at the European Court of Human Rights, Professor of International Law, Dalhousie Law School, Halifax, Canada Member of the Institute of International Law

K. Meessen Jean Monnet Professor of Public Law, European Law, Public International Law and International Economic Law, Friedrich Schiller University, Jena, Germany T.Meron Charles L. Denison Professor of Law, New York University R. Miillerson Professor of International Law, King s College, London Associate Member of the Institute of International Law P. Peeters Professor of Constitutional Law, K.U. Leuven M.Reismann Wesley N. Hohfeld Professor of Jurisprudence, Yale Law School W.Remans Head of the Department of International Affairs, Red Cross Flanders

L. Reychler Professor of International Relations, K.U. Leuven

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S. Rosenne Member of the Institute of International Law, formerly Member of the International Law Commission (1962-1971) and of the Commission on Human Rights (1968-1970) Honorary President, Israel Branch of the International Law Association Honorary Member of the American Society of International Law E. Roucounas Professor of International Law, Athens University Member of the Institute of International Law Member of the Academy of Athens C. Schreuer Professor of Law, Department of International Law, University of Salzburg, Edward B. Burling Professor of International Law and Organization, Johns Hopkins University, Washington

I. Seidl-Hohenveldern Emeritus Professor of International Law, University of Vienna Member of the Institute of International Law K. Skubiszewski President of the Iran-United States Claims Tribunal Member of the Institute of International Law N. Sybesma-Knol Emeritus Professor of the Law of International Organizations, former Director of the Centre for the Study of the Law of the United Nations and the Specialized Agencies, Free University of Brussels

D. Thurer Professor of Public International Law, European Law, Constitutional and Administrative Law at the University of ZUrich Member of the International Committee of the Red Cross Alternate Judge at the OSCE Court of Conciliation and Arbitration Member of the Constitutional Court of the Principality of Liechtenstein Member of the International Commission of Jurists C. Tomuschat Professor of Constitutional and International Law, Humboldt University of Berlin former Member of the Human Rights Committee under the International Covenant on Civil and Political Rights (1977-1986) and the UN International Law Commission (1985-1996)

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s. Torres Bernardez Formerly Registrar of the International Court of Justice Member of the Institute of International Law T. van Boven Professor of International Law, University of Maastricht L. Van den Brande Minister-President of the Government of Flanders H. Van Houtte Professor of Private International Law, International Business Law and Arbitration,K.U.Leuven Member of the Property Claims Commission and its Chairman for Legal Issues J. Verhoeven Professor of International Law, Catholic University of Leuven Member of the Institute of International Law W. Verwey Professor of International Law, University of Groningen K. Wellens Professor of International Law and the Law of International Organizations, Catholic University of Nijmegen R. Wolfrum Director Max-Planck-Institute for Foreign, Public and International Law, Heidelberg K.Zemanek Professor of International Law, University of Vienna Member of the Institute of International Law

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SUBSCRIBERS Nicolas Angelet Assistant, Katholieke Universiteit Leuven Ms. Karin Arts Lecturer in Intemational Studies, Institute of Social Sciences, The Hague, The Netherlands Bert Bamhoom Marc Bossuyt Professor University of Antwerp (UIA), Judge at the Court of Arbitration Professor J.A. Carrillo-Salcedo Sevilla University Philippe Couvreur Secretaire juridique principal de la Cour intemationale de Justice - La Haye Eric David Professeur al'Universite libre de Bruxelles Dr. Erik Denters Johan Erauw Professor of Law, University of Ghent, Member of the Bar Brussels Erik Faucompret Lecturer UFSIA (University of Antwerp) Carl-August Fleischhauer, Dr. jur. Judge of the Intemational Court of Justice former Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations Cees Flinterman Professor Karel De Gucht Member of the Flemish Parliament Ria Heremans-Van Elslande Officer in Charge, United Nations Information Centre for Benelux

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Professor Dr. Anne Hermans Hoogleraar/ Volksvertegenwoordiger Pascal Heyman Diplomat, Belgian Foreign Service

Drs. Gilbert Jaeger Former Director of protection of UNHCR

Dr. Mr. P.E.L. Janssen Dutch Open University, Heerlen ShiJiuyong Member, International Court of Justice P.J.G. Kapteyn Member of the Court of Justice of the European Communities Jean-Pierre Lagae Advocaat, Buitengewoon Hoogleraar K.U. Leuven Professor E. Lauterpacht, CBE QC University of Cambridge Paul Lemmens Professor, Catholic University Leuven J.H.A. van Loon Secretary General, Hague Conference on private international law Drs. Truus Lostrie lie diplomatieke wetenschappen - ombudsvrouw overheidsbedrijf de Post Jean-Victor Louis Professeur l'ULB

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Dr. Frank Maes University of Ghent Dr. Guy Magnus Society for Research on Environment and Health, Brussels/Antwerp Professor Dr. Peter Malanczuk Chair of International Law, Erasmus University Rotterdam, Counsel Lalive & Partners, Attorneys-at-Law, Geneva Member Tianjin Board of Arbitration, China

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Honorary Guest-Professor, University of Nankai, China Herman Meijers

Dr. Ann Pauwels Research Assistant Department International Law, Vrije Universiteit Brussel Dr. Yvo J.D. Peeters Belgian Helsinki Committee, Brussel Jennes Philip Nat. Secretary Young Europeans for Security (YES - Belgium) Professor Dr. Walter Pintens Gewoon hoogleraar K.U. Leuven M.C.W. Pinto Secretary-General Iran-United States Claims Tribunal Wilfried Remans on behalf of the Belgian Red Cross - Flanders, Humanitarian Law Office Dr. Olivier M. Ribbelink Jean Salmon professeur emerite, Universite libre de Bruxelles Professor Nico Schrijver Vrije Universiteit Amsterdam, Institute of Social Studies, The Hague Professor Dr. B. De Schutter Faculty of Law - Rechtsfaculteit VUB Professor Dr. Bruno Simma Professor Dr. E. Somers University of Ghent Professor Dr. J. Steenbergen Frans J. Vanistendael Professeur K.U. Leuven Jacques Vantomme European Commission Brussels

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Eugeen Verhellen Gewoon Hoogleraar Universiteit Gent Michel Verwilgen Departement de droit international (VCL), Louvain-la-Neuve Professor Em. Paul de Waart Friedl Weiss Luc De Wever Head Legal Affairs, International Federation of Red Cross and Red Crescent Societies Professor Dr. Jan Wouters Universities of Maastricht and of Antwerp