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

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

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

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

The decision of the United States and 22 other countries not to sign the Law of the Sea Convention in Montego Bay, Jamaica, on December 10, 1982, raises the important question of the legal effects of the. Convention upon nonsignatories (hereinafter referred to as “third states”). Will the latter be entitled to claim and enjoy treaty provisions beneficial to them, such as those pertaining to military or commercial navigation through international straits, including submerged passage and overflight rights, or will these rights be considered as contractual in nature, exercisable only by states parties? Clearly, the question is of critical importance to the regime of the law of the sea. Since there has been to date no systematic legal analysis of this important question in debates surrounding the Law of the Sea Convention, this essentially legal question has been consigned to general policy pronouncements.