INTRODUCTION

When after the Napoleonic wars of the early nineteenth century the Prussian major-general Carl von Clausewitz famously wrote that war was the continuation of policy by other means, he had a point. Throughout the ages, war had been conducted without many legal obstacles being placed in its way, and there was a strong sentiment that going to war, for whatever reason, was perfectly legal. Admittedly, many felt that this was an undesirable state of affairs, and theologians and lawyers alike had aspired to limit the possibility of resorting to war by making a distinction between just wars and unjust wars, but state practice had proved rather resilient. And understandably so: distinguishing between just and unjust wars presupposes a working conception of justice, and since justice is itself a highly contested concept, it follows that reasonable people could disagree about whether a war would be just or unjust.

Earlier generations of international lawyers insisted on a rigid distinction between war and peace; the two would be entirely different conditions, governed by different sets of rules. Some of this is still visible in today's international law; there are specific rules on how to behave during war (such as the 1949 Geneva Conventions) which have little application during peacetime. Still, the rigidity of that earlier distinction no longer applies; war and peace have come to be seen as more fluid conditions, sometimes governed by specific rules, but sometimes also by general rules. There is little doubt, for instance, that human rights law continues to apply even in wartime.

Still, as a general rule, warfare is nowadays prohibited. Under the UN Charter, there is a well-nigh total ban on the use of force, with only one recognized exception other than the possibility of engaging in collective security acts: the right to self-defence. That is not to say, though, that the use of force has become a thing of the past; armed conflicts still occur, as do civil conflicts and armed interventions, and much legal argument goes into debating whether such acts can be justified on the basis of customary international law.

This suggests that the law on the use of force is made up of two different regimes; the Charter regime, and the customary regime which, according to many observers, may be more flexible than the Charter regime.

INTRODUCTION

With almost three-quarters of the globe covered by water, regulation of the seas has always been of crucial importance to the international community. Some of this importance stems from security concerns, but much of it resides in the economic relevance of the seas. This relevance, in turn, stems from two uses to which the seas can be put. They are, first, media of communication, allowing the transport of goods from point X to point Y, and for a long time provided the most obvious means available. Second, the seas and their subsoil are rich in resources, from fish stocks via oil and natural gas reserves to manganese nodules. What holds for the seas also holds, with only minor differences, for the air and outer space. These, too, are vital channels of communication, be it by means of aircraft or by means of radio waves, and, to some extent, have resources to offer as well. The latter applies in particular to the moon and other celestial bodies.

For Grotius, writing his classic Mare Liberum more than four centuries ago, there could be no doubt that the seas should be free. For one thing, this was clearly God's wish; otherwise He would have made sure that the same animals and spices would exist everywhere, and maritime transport would not be necessary, so Grotius suggested. More pragmatically, Grotius also held that the seas were incapable of being possessed; the oceans are too vast to be controllable by a single power, and since legal title has to start with actual possession, it followed that ownership of the seas was impossible.

Ever since, the law of the sea, mainly dealing with what states are allowed to do, has been an ever-changing compromise between freedom, on the one hand, and the exercise of jurisdiction by coastal states, on the other. This was already visible in Grotius’ own work. In a reply to a contemporary critic, he conceded that even though the seas could not be possessed, coastal states might exercise jurisdiction over them. And in his magnum opus, published a decade and a half later, he had come round to the idea that states owned the territorial seas off their coasts, his earlier misgivings notwithstanding. Presently, most of the seas are still free, in that states cannot claim ownership of most parts of the sea.

INTRODUCTION

‘Responsibility’ is the term used by international lawyers to denote the idea that some entity can be blamed for undesirable behaviour. The main form, relatively well settled, is the responsibility of states. It was confirmed by the PCIJ in the 1920s, in the Chorzow Factory case, that the possibility of being held responsible was the price to pay for being able to participate in international law. Consequently, it would seem that, in principle, all subjects of international law can be held responsible for their behaviour, not just states, but also international organizations, liberation movements, and even NGOs. That said, however, specific responsibility regimes have only been developed with respect to states, international organizations, and individuals, and even then much of the law is rather sketchy and incipient. To some extent, the gap is being filled by speaking of accountability (as opposed to responsibility) of companies and NGOs, in addition to corporate social responsibility. It is worth pointing out, though, that on these topics hard and fast legal rules are few and far between. The only firmly established set of rules in existence relates to the responsibility of states, and these rules will be central to this chapter. In addition, some attention will be paid to the responsibility or accountability of other actors.

As a terminological matter, responsibility is usually (but not always) distinguished from liability and accountability. Liability usually denotes the existence of a financial obligation; someone is liable to pay compensation. Hence a finding of responsibility may come with a finding of liability; X is responsible for wrongdoing, and thus liable to pay compensation. Alternatively, parties can agree that regardless of who is responsible for some mishap, liability shall rest with a particular state. This is the case, for instance, within NATO: responsibility for certain NATO acts may rest with NATO itself (depending on the circumstances), but liability is assigned, by treaty, to particular member states.

Accountability is the broadest of the terms, and in its more sophisticated versions may signify the existence of a relationship whereby someone is held to explain and justify their behaviour to someone else. This may involve the law of responsibility, but need not: one can also meaningfully speak of democratic accountability, for example where a person is expected to justify her behaviour to a parliament rather than before a court.

INTRODUCTION

One of the more debated fields of international law in recent decades is generally considered to be a fairly novel branch of the law: the international legal protection of the environment. Among the reasons why this is hotly debated is that agreement between states is sometimes hard to find; there exist strong political cleavages not only over the extent to which the global environment is under threat, but also over what to do about it and, eventually, about who should pay for it. In a nutshell, developed industrialized nations, whose industrialization and lifestyle has done much to help degrade the environment, are reluctant to mend their ways; less developed nations tend to think that if others could benefit from industrialization, then so should they, regardless of the consequences. And if much degradation has been caused by those others, it seems only fair that those who became rich on the back of environmental degradation should foot most of the bill. Partly as a result, much of international environmental law consists of fragile compromises.

There is another factor which makes it difficult to achieve a coherent and effective body of international environmental law, and that is the circumstance that while international law is typically made between and for states, states themselves are rarely the direct culprits when it comes to pollution and degradation. Instead, many of the world's environmental problems are caused by the activities of companies and individuals. Typically, dumping toxic waste into rivers, or letting oil spill from oil drilling platforms, are not directly attributable to states. Likewise, the emissions of millions of cars and aircraft are not the work of states, but of individuals keen on moving comfortably from place A to place B. While government officials may be implicated in various ways (from designing inadequate legislation to planning shopping malls in suburban areas in such a way that they are only accessible by car), none the less the behaviour that needs to be affected by international environmental law is predominantly the behaviour of individuals and companies.

This sets international environmental law apart from most other branches of international law, and makes international environmental law into something of a laboratory for international law generally. Perhaps because easy solutions are out of reach, law-makers and negotiators are forced to experiment with new mechanisms and techniques in order to achieve a semblance of regulation.