bluuebunny/crossref_metadata_2025 huggingface dataset:
The Enemy Alien Problem in the Present War
Authors: Kempner Robert M. W.
Published: April 2006

At the beginning of this war, September 3, 1939, the usual legal concept of the term “enemy alien,” as it was known in the war of 1914–1918, appeared again in Great Britain, France, and Germany. Great Britain, in the Enemy Act of 1939, defines an enemy subject as “an individual who not being either a British subject or a British protected person, possesses the nationality of a state at war with His Majesty the King”; France defines the term as “les ressortissants ennemis”; the Reich, as aliens belonging to an enemy state, and includes those persons without nationality who before the loss of their nationality were citizens of an enemy Power.
Egypt: The Transition Period
Authors: Brinton Jasper Y.
Published: April 2006

The Egytian problem presents two aspects. One concerns the purely political struggle for independence. The other has to do with the favored position of foreigners in Egypt under the régime of the Capitulations. The former was primarily a private concern between the two countries involved—Egypt and Great Britain. The other, while touching in a special manner the responsibilities accepted by the “occupying Power,” concerned in an important manner the several foreign nations which had come to have stakes of great importance in the country—interests of a commercial, professional, educational, religious and even semi-political character. The separate nature of these two aspects of the same problem is well illustrated by the fact that two entirely separate series of international negotiations were required to deal with them.
Removal of Enemy Persons from Neutral Vessels on the High Seas
Authors: Briggs Herbert W.
Published: April 2006

Early in the afternoon of January 21, 1940, the Japanese steamship Asama Maru, proceeding from Honolulu to Yokohama, was stopped at a point 35 nautical miles off the coast of Japan by a British man-of-war. The British warship boarded the Asama Maru, and, “claiming to act under a right in international law but without explaining in detail the reasons for its actions and without even disclosing its name,” forcibly removed 21 of the 50 Germans on board.
The Military Commission
Authors: Green A. Wigfall
Published: April 2006

The spotlight which has played on the international military trials at Nuremberg and elsewhere has left in relative darkness and obscurity the trials by the military commission of the American fighting and occupation forces.
Power Politics and International Organization
Authors: Briggs Herbert W.
Published: April 2006

The Charter of the United Nations, signed at San Francisco on June 26, 1945, states in Article 2 (1) that “ the Organization is based on the principle of the sovereign equality of all its Members.” Since the outstanding characteristics of the Charter are its recognition of the actual and legal inequality of the Members of the United Nations, and its provisions empowering the Organization to take action, binding on its Members, without their unanimous consent, an understanding of the Charter will be enhanced by placing its dominant features in their conceptual and historical setting.
The Disposition of Enemy Dependent Areas
Authors: Fox Annette Baker
Published: April 2006

If a defeated Japan is to be “ pared back to her volcanic core,” China will be a prime beneficiary. The Cairo Declaration promised to return to her Formosa, the Pescadores, and Manchuria. But what of those parts of the Japanese colonial empire which were not Chinese? Some other arrangements must be made for Korea and the Japanese mandated islands. Liquidation of Italy's African empire raises similar questions.
The Legal Status of Germany According to the Declaration of Berlin
Authors: Kelsen Hans
Published: April 2006

According to the Declaration made at Berlin on June 5, 1945, by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom, and the Provisional Government of the French Republic, these Governments have assumed “ supreme authority with respect to Germany including all the powers possessed by the German Government, the high command, and any state, municipal, or local government or authority.” This means that the German territory, together with the population residing on it, has been placed under the sovereignty of the four powers. It means further that the legal status of Germany is not that of “ belligerent occupation” in accordance with the Articles 42 to 56 of the Regulations annexed to the Hague Convention respecting the Laws and Customs of War on Land of 1907. After Germany's unconditional surrender and especially after the abolition of the last German Government, the Government of Grand Admiral Doenitz, the status of belligerent occupation has become impossible. This status presupposes that a state of war still exists in the relationship between the occupant state and the state whose territory is under belligerent occupation. This condition implies the continued existence of the state whose territory is occupied and, consequently, the continued existence of its government recognized as the legitimate bearer of the sovereignty of the occupied state. This is the reason why it is generally assumed that belligerent occupation does not confer upon the occupant power sovereignty over the occupied territory. By belligerent occupation the legitimate government is made incapable of exercising its authority and is only substituted for the period of occupation by the authority of the occupant power. The legitimate government of the occupied state, especially the head of the state, may be expelled from the occupied territory and may have established his seat on the territory of an ally; the government, and especially the head of the occupied state, may even be made prisoners of war.
But the government must continue to exist and must be recognized as such by the occupant power. The latter must be willing to conclude with this government a treaty of peace and to hand back to it the whole or a part of the occupied territory.
The St. Lawrence Waterway and Power Project
Authors: Borchard Edwin
Published: April 2006

The St. Lawrence Waterway and Power Project has been one of the most controversial questions before the Congress. It was defeated as a treaty and later as an executive agreement. There are apparently too many interests which consider themselves jeopardized by the project to obtain a majority support for the scheme.
The Draft Declaration on Rights and Duties of States
Authors: Kelsen Hans
Published: April 2006

The International Law Commission, established by resolution 174 (II) of the General Assembly (November 21, 1947), has prepared a draft Declaration on Rights and Duties of States, in conformity with resolution 178 (II) of the General Assembly (November 21, 1947). The first question which arises concerns the legal nature of this Declaration. The draft Declaration was drawn up by the Commission as the text of a resolution to be adopted by the General Assembly.
The Twenty-Fifth Year of the World Court
Authors: Hudson Manley O.
Published: April 2006

The chief preoccupation with regard to the WorldCourt during the year 1946 was the reorganization required by the modifications introduced into its Statute in 1945.1 This involved chiefly the dissolution of the Permanent Court as it was constituted under the Statute of 1920, the election, of Judges to constitute the International Court of Justice, the organization of the newly-elected bench and the reestablishment of the Registry, and the adaptation ofthe Rules of Court to take account of the changes in the text of the Statute. Various administrative measures were adopted by the United Nations, in consequence of its replacing the League of Nations as the body responsible for the maintenance of the Court, and some progress was made during the year in extending the Court's jurisdiction. No contentious proceeding was instituted during 1946,2 no advisory opinion was requested, and hence no entry wasmade in the list of cases before the Court.
In Memoriam: Edwin M. Borchard, 1884-1951
Authors: Briggs Herbert W.
Published: April 2006

Edwin M. Borchard, lawyer, scholar, teacher, public servant, and kindly humanitarian, died July 22, 1951, after a lingering illness. Born in New York, October 17, 1884, he received his LL.B. at New York Law School in 1905 and a Ph.D. at Columbia University in 1913. He was awarded honorary degrees of Doctor of Laws by the University of Berlin in 1925 and by the University of Budapest in 1935. He served as expert on international law to the American Agency, North Atlantic Coast Fisheries Arbitration at The Hague in 1910; as Law Librarian of Congress from 1911 to 1913 and from 1914 to 1916; as Assistant Solicitor, Department of State, 1913-1914; as chief counsel for Peru in the Tacna-Arica Arbitration; as special legal adviser to the Treasury Department; as technical adviser to theAmerican Delegation to The Hague Codification Conference of 1930; and as a member of the Pan American Committee of Experts for the Codification of International Law.
The Final Act of the London Conference on Germany
Authors: Briggs Herbert W.
Published: April 2006

As Chairman of the Washington Conference on the Limitation of Armament, Secretary of State Charles Evans Hughes had occasion to observe that “certain of the resolutions … adopted by the Conference are put in treaty form. … In other cases, the resolutions are of a character not requiring such sanction in the form of a treaty, and are deemed to be binding upon the Powers according to their tenor when adopted by the Conference.” Problems of a comparable nature arise with reference to the obligatory force and juridical effect in international law of “decisions,” “agreements” and “arrangements” set forth in the Final Act of the London Conference of 1954 on Germany.
Compensation for Nationalized Property: The British Practice
Authors: Drucker Alfred
Published: April 2006

The United Kingdom, like the United States, tried after the last war to protect the interests of its citizens in the many Central and Eastern European countries in which first the means of production and not much later the means of distribution were “nationalized.” Its success in these endeavors was about as disappointing as that of the United States. Neither the United Kingdom nor the United States succeeded in protecting in these countries the individual rights of their citizens by means of diplomatic intervention. The disintegration of the conception of property rights in Europe has gone so far that no individual claimant seems to have been able to obtain full satisfaction. Only where timely economic countermeasures were taken against the confiscating states could compensation agreements be concluded which provide for some measure of compensation.
The Object Theory of the Individual in International Law
Authors: Manner George
Published: April 2006

Among the solutions to the highly controversial issue of the standing of the individual in international law is the theory that the individual is not a subject, but an object, of this law. This solution, moreover, represents the currently dominant doctrinal conception of the position of men in this law. For ever since its formulation in 1896 this theory has been expressly or tacitly accepted by nearly all of those jurists who may be collectively designated as the subjective positivist school of international law, and these jurists have ever since that time predominated in the science of this law. Nevertheless, the validity of this theory has also been questioned seriously.
The New Geneva Conventions for the Protection of War Victims
Authors: Pictet Jean S.
Published: April 2006

The Geneva Conventions are the basis on which rest the rules of international law for the protection of the victims of armed conflicts.
Neutral States and the Extradition of War Criminals
Authors: Neumann Robert G.
Published: April 2006

The determination of the Allied Powers to seize and punish war criminals was implemented several years ago by the corollary decision to ask for their extradition from foreign countries. President Roosevelt announced on October 7, 1942
Utilization of International Rivers in the Middle East
Authors: Hirsch Abraham M.
Published: April 2006

In recent years, increased attention has been focused on international conflicts of interest with respect to international rivers of the Middle Bast. The creation of new political units in the area after the first World War, their attainment of independence, and the creation of new states in the years following the second World War, fragmented the areas irrigated by most of the Middle East’s rivers.
Bricker Amendment—Fallacies and Dangers
Authors: Whitton John B. , Fowler J. Edward
Published: April 2006

It would appear that the treaty-making procedure, long considered too cumbersome and too difficult, has suddenly become too easy. Almost from the beginning, the system whereby one-third plus one of the Senate membership can block any treaty, has been denounced as “undemocratic,” and as “government by minority.” In fact, as late as 1945 the House of Representatives approved a Constitutional Amendment to permit the approval of any treaty by a mere majority vote of the two Houses.
Willingness to Bear Arms as a Requirement of Naturalization
Authors: Hudson Manley O.
Published: April 2006

A landmark of the law of naturalization in the United States, established by the Supreme Court after a tortuous course of decision, has now found legislative confirmation in a provision in the Internal Security Act of 1950.

The oath of petitioners for naturalization provided for in §4 (3) of the Act of 1906 required a declaration of willingness “to support the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same”; and the Act provided that the naturalization court must be satisfied that during his residence the petitioner has behaved as a man “attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”

For some years the question was put to petitioners, “If necessary, are you willing to take up arms in defense of this country?” A negative answer to this question led to a denial of the petition in U. S. v. Schwimmer (1929), 279 U. S. 644. This was followed in U. S. v. Macintosh (1931), 283 U. S. 589, and U. S. v. Bland (1931), 283 U. S. 636. Despite these decisions, no change was made in the required oath when the Nationality Act was revised in 1940. Yet the three earlier decisions were overruled in U. S. v. Girouard (1946), 328 U. S. 61, on the ground that the required oath might properly be taken by a person unwilling on religious grounds to bear arms.
The Legal Effects of Recognition
Authors: Brown Philip Marshall
Published: April 2006

No branch of international law has been so badly misunderstood and needlessly confused as that of the recognition of new states and new governments. Recognition has been the football of diplomats who have made it mean anything that suited their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and intervention. It has in many cases proved to be an insoluble puzzle to the courts whose decisions have been sometimes conflicting and confusing. It has been a plaything for the political scientists who have taken delight in posing abstract problems of a theoretical nature.
The Enforcement of International Judicial and Arbitral Decisions
Authors: Schachter Oscar
Published: April 2006

Considering the voluminous literature on international judicial and arbitral settlement, it may at first seem surprising that there has been relatively little interest shown by international lawyers in the problem of enforcement of the decisions rendered—a matter which is regarded as crucial in other areas of international law and organization. Yet the reasons for this lack of attention are not difficult to discern. Mainly it has been taken for granted that states which voluntarily submit their disputes to arbitral or judicial procedures will comply with the decision of the tribunal, and that if they were not prepared to run the risk of an adverse decision, they would not have submitted the case for adjudication in the first place.
The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas
Authors: Dean Arthur H.
Published: April 2006

The opening of the Northwest Passage between the Atlantic and the Pacific Oceans under the Arctic ice by the atomic submarines U.S.S. Seadragon and U.S.S. Nautilus heralds the conquest of hitherto impenetrable undersea depths. Yet this event is only one of many triumphs along a new frontier of oceanographic exploration and development which is uncovering untapped sources of immeasurable wealth and benefits for all peoples. But even as we confidently prepare to harness these vast natural resources of the oceans, we must seek to achieve equitable agreements on international laws of the sea by which nations will abide. Only thus can the freedom of the seas and the right to harvest its resources be ensured without the risk of anarchy and wasteful depletion; only thus can nations avoid increased risk of strife and, possibly, war over conflicting claims to the bounty of the seas.
Election Procedure in the United Nations
Authors: Rudzinski Aleksander W.
Published: April 2006

It appears at first sight almost incredible that a secret ballot under the majority rule could result in more candidates mustering the required majority of votes than there are places to be filled. But this actually happened four times in the Security Council during the election of judges to the International Court of Justice.
State Trading and the Most-Favored-Nation Clause
Authors: Domke Martin , Hazard John N.
Published: April 2006

The governments of eleven Western countries have recently declined to accept a Soviet proposal to include an unconditional most-favored-nation clause in a draft All-European Agreement of Economic Co-operation.
General Principles of Law as Applied by the Conciliation Commissions Established Under the Peace Treaty with Italy of 1947
Authors: Seidl-Hohenveldern Ignaz
Published: April 2006

The present study is intended to be a modest contribution to Schlesinger’s research project concerning the “general principles of law recognized by civilized nations.” At the same time it tends to comply with the voeu recommended by Jenks to the Institut de Droit International concerning the desirability of better information on the decisions of international arbitral tribunals. It is the aim of the present study to trace all explicit or implied references to these “general principles of law recognized by civilized nations” which may be found in the hitherto published decisions of the Conciliation Commissions established under Article 83 of the Peace Treaty with Italy of February 10, 1947. These Commissions consist of one member appointed by each of the states concerned. If these two members fail to agree, they draft a “statement of disagreement,” whereupon a third member,5 citizen of a third state, is added to the Commission, which shall then decide the case concerned by a majority vote.
Maritime Quarantine: The Naval Interdiction of Offensive Weapons and Associated Matériel to Cuba, 1962
Authors: Christol Carl Q. , Davis Charles E.
Published: April 2006

It has often been said that international law is a living institution in a living society.
A Soviet Contribution to International Adjudication: Professor Krylov’S Jurisprudential Legacy
Authors: Zile Zigurds L.
Published: April 2006

This article deals with Professor Sergei Borisovich Krylov’s (1888-1958) work as an example of the impact of Soviet theory and practice on international adjudication. Krylov’s statements and performance regarding this institution are examined in the light of his relationship with his state. By bringing out some of the factors that motivate an individual acting in a state-oriented society, further appraisals of the rôle and the effective limits of international adjudication, with Soviet participation, may be aided.
The Jurisprudence of the World Court: Thirty-Eighth Year (1959)
Authors: Gross Leo
Published: April 2006

In the first study devoted to the World Court, Manley Hudson was largely concerned with the formal steps leading to its establishment and its organization. He placed the Court in historical perspective by linking it with the fruitless efforts at the 1907 Hague Peace Conference to set up a Permanent Court of Arbitral Justice.
Maps as Evidence in International Boundary Disputes: A Reappraisal
Authors: Weissberg Guenter
Published: April 2006

In determining the location of a boundary, international as well as national tribunals have in the past been reluctant to place much evidentiary value on maps, regardless of their number or designation.
Bulgaria Invokes the Connally Amendment
Authors: Gross Leo
Published: April 2006

One of the most persuasive arguments advanced by the advocates of the repeal of the Connally Amendment has been its “boomerang effect.” While it was intended to protect the vital interests of the United States as a respondent, it also protected, on the basis of reciprocity and perhaps less intentionally, the respondent state in a case instituted before the International Court of Justice by the United States as the applicant.
Assimilation of National Laws as a Function of European Integration
Authors: Eric Stein
Published: April 2006

In more than one sense the European Communities are a frontier land of modern international organization. One aspect of the work of the European Economic Community which has thus far escaped the attention lavished on other facets is the multi-pronged effort to reduce the differences among the national laws of the member states. Stated more affirmatively, this is an effort to make the national legal systems of the member states more similar, to “assimilate” them. This effort has much in common with the “uniform law” movement in the United States and with the “unification-of-law” movement which has flourished on the Continent in this century. But it differs from these “uniformity” and “unification” movements in at least two respects
The “New” Countries and the “New” International Law: The United Nations’ Special Conference on Friendly Relations and Co-operation among States
Authors: McWhinney Edward
Published: April 2006

A good deal of the creative energy of international lawyers in recent years has been absorbed in the continuing Soviet-Western debate revolving around the special Soviet juridical concept of peaceful coexistence or, in its Western-style and United Nations-endorsed euphemism, the concept of friendly relations and co-operation among states with differing political and social systems. Whether in the United Nations Sixth (Legal) Committee, in the authoritative, if private, International Law Association, even in the World Federation of United Nations Associations' scientific seminars, or at times in the International Law Commission itself, the discussion over coexistence (friendly relations) has tended to be a straight Soviet-Western dialectical contest that has been concerned sometimes with hammering out minimum principles of Soviet-Western accommodation in the Cold War era, and sometimes seemingly with the making of propaganda points that would be helpful in carrying on future Soviet-Western dialogues or even more perhaps in carrying the ideological war to the neutralist, uncommitted countries. The apparent achievement of a reasonably firm or stable Soviet-Western detente, with a consequent increasing focus on extension and development of minimum principles of world public order on a basis of reciprocity and mutuality of interest as between the two main competing legal value systems has been amply commented on already. In a sense, the international law of the detente, constructed on a pragmatic basis of inter-systems agreement or consensus, and demonstrated empirically in the actual record of such de facto accommodations and give-and-take, represents a species of “new” international law.* At least, it represents a new gloss on the old customary international law, albeit a gloss that is specially concerned, in the special societal conditions of the contemporary world community, with considerations of security, of stability of settled expectations, and of certainty and the avoidance of surprise in inter-group (more accurately inter-systems) relations—the old “Watchman’s State” legal virtues.
The International Law Commission Re-Examined
Authors: Lee Luke T.
Published: April 2006

Commenting on the International Law Commission m the eighth year of its existence, Professor Julius Stone urged the conversion of the Commission

from a body of learned lawyers preparing draft codes for Governments, which either do not want any code or want a code with different provisions, into an International Law Research Center for the basic problems arising in the more dynamic, changeful, and disrupted segments of international law. … [T]he International Law Commission is not destined to solve or transform the basic problems of international law and society in pursuance of its present mandate. Not even its staunchest protagonists can give to the continuance of this present mandate much more than a token, time-marking value pending the appearance of a different world situation.
The Lawfulness of Military Assistance to the Republic of Viet-Nam
Authors: Moore John Norton
Published: April 2006

The major thrust of contemporary international law is to restrict coercion in international relations as a modality of major change. The use of force as an instrument of change has always been wasteful, disruptive, and tragic. In the nuclear era the renunciation of force as a method of settlement of disputes has become an imperative. These necessities have resulted in a widely accepted distinction between lawful and unlawful uses of force in international relations which is embodied in the United Nations Charter. Force pursuant to the right of individual or collective defense or expressly authorized by the centralized peacekeeping machinery of the United Nations is lawful. Essentially all other major uses of force in international relations are unlawful. These fundamental proscriptions are designed to protect self-determination of the peoples of the world and to achieve at least minimum world public order. As such, they reflect the basic expectations of the international community. Since they are aimed at prohibiting the unilateral use of force as a modality of major change, they have consistently authorized the use of force in individual or collective defense at least “until the Security Council has taken the measures necessary to maintain international peace and security.” This defensive right is, at least at the present level of effectiveness of international peacekeeping machinery, necessary to the prevention of unilateral use of force as an instrument of change. The fundamental distinction between unlawful unilateral force to achieve major change and lawful force in individual or collective defense against such coercion is the structural steel for assessment of the lawfulness of the present military assistance to the Republic of Viet-Nam.
United States Policy and the Crisis of International Law: Some Reflections on the State of International Law in “International Co-operation Year”
Authors: Friedmann Wolfgang
Published: April 2006

If the twentieth anniversary of the United Nations, designated as “International Co-operation Year,” had fallen in 1964 rather than 1965, a general assessment of the evolution of international law and organization since the end of World War II would have justified a measure of cautious confidence. Mankind was still very far from having organized itself against the danger of aggression. The danger of the proliferation of nuclear arms remained without effective control, apart from a partial nuclear test ban to which both the United States and the Soviet Union were parties. The world’s largest state, Communist China, remained outside the United Nations and without diplomatic relations with the United States and a large number of other states. The United Nations remained without effective control in conflicts between major Powers. The special agencies of the United Nations and other international welfare organizations still lacked, with few exceptions, the legal and executive power to cope with the many urgent problems of mankind. In the two most vital and dangerous areas: the conservation of resources, and the stemming of the explosive growth in the world's population, international organization was still embryonic or altogether lacking. But these grave drawbacks and deficiencies.
The Time Element in the Contentious Proceedings in the International Court of Justice
Authors: Gross Leo
Published: April 2006

It is common knowledge that the initial time periods for the submission of written pleadings—memorial, counter-memorial, reply and rejoinder—are determined by the Court after consultation with the parties. Similarly, extensions of time limits are granted by the Court at the request of one party and after consultation with the other party or parties. The Court in both respects has been absolutely at the mercy of the parties, the formal orders made by the Court signifying its compliance with their wishes.
International Law: The Old and the New
Authors: Fenwick Charles G.
Published: April 2006

The Hague Conference of 1907 is over and the delegates return to their respective countries. Aspirations for the pacific settlement of international disputes have been voiced and a list of possible arbitrators has been drawn up described by the formal name of the Permanent Court of Arbitration. Well and good! No obligation was accepted to have recourse to the Court, but at least the Conference went so far as to declare its acceptance of “the principle of compulsory arbitration” and its applicability to international agreements. At the same time the Conference declared that the divergencies of opinion in respect to compulsory arbitration “have not exceeded the bounds of judicial controversy,” and that the delegates, in the course of their long collaboration, had succeeded “in evolving a very lofty conception of the common welfare of humanity.”
Communist China’s Attitude toward the United Nations: A Legal Analysis
Authors: Chiu Hungdah , Edwards R. R.
Published: April 2006

The scope of this paper is limited to the study of Communist China’s attitude toward some important legal problems of the United Nations, such as its legal status, the binding force of its resolutions and the Chinese representation question. In regard to sources, this paper is based upon Communist China’s official statements, treaties, the record of its international practice and the views expressed by certain Communist Chinese writers.
The Revocation of the Mandate for South West Africa
Authors: Dugard John
Published: April 2006

After twenty years of frustrated attempts to bring South Africa to accept her international obligations in respect of South West Africa, the United Nations General Assembly resolved on October 27, 1966, to terminate South Africa’s right to administer the Territory. In this resolution the Assembly declared that

South Africa has failed to fulfil its obligations in respect of the administration of the Mandated Territory and to ensure the moral and material well-being and security of the indigenous inhabitants of South “West Africa, and has, in fact, disavowed the Mandate.
International Law and Social Science: The Contributions of Myres S. McDougal
Authors: Young Oran R.
Published: April 2006

It is widely agreed that Professor McDougal's impressive intellectual achievements can be traced, in part, to his efforts to expand the use of concepts and conclusions from the social sciences in the analysis of legal issues, especially in the realm of international law. Nevertheless, his concern with the links between the development of a policy-oriented jurisprudence on the one hand and the use of findings from the social sciences in legal analysis on the other has often led to confusion among his supporters and his opponents alike. Accordingly, my purpose in this essay is to examine critically this element of McDougal's thinking1 in the hopes of reaching a clearer understanding both of McDougal's contributions to the study of international law and of the relationship between legal analysis and the social sciences in general.2
Report on the Survey of the Society’s Membership
Authors: Edwards Richard W.
Published: April 2006

At the direction of the Executive Council of the American Society of International Law, a questionnaire survey of the membership was made in the Spring of 1969. This report summarizes the information and data received in 2,492 questionnaires returned. Over 55% of the Society’s members responded to the survey.
Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice
Authors: Briggs Herbert W.
Published: April 2006

The final preambular paragraph of the 1969 Vienna Convention on the Law of Treaties affirms “that the rules of customary internationallaw will continue to govern questions not regulated by the provisions of the present Convention;” and Article 4 of the Convention, establishing the nonretroactivity of the Convention by providing that it “applies only totreaties which are concluded by States, after the entry into force of the present Convention with regard to such States,” stipulates that this nonretroactivity is “ [w]ithout prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention.”
International Practice Regarding Traditional Fishing Privileges of Foreign Fishermen in Zones of Extended Maritime Jurisdiction
Authors: Windley David W.
Published: April 2006

In recent years, many nations have made claims of extended maritime jurisdiction or exclusive control for various purposes, and sometimes have claimed sovereignty over areas of sea far beyond the three-mile territorial sea traditionally claimed by many nations. A primary objective of many of these claims has been control over fishing in coastal waters, with the purpose of reserving for the exclusive use of fishermen of the coastal state the fish resources in the waters claimed, or of controlling the activities of foreign fishermen and possibly exacting fees for the privilege of continued fishing. The nature of most claims of authority to regulate the taking of fish in coastal waters is such as to exclude foreign fishermen, such claims having as their basic purpose unconditional right of exclusion. What rights exist for displaced fishermen exist as a matter of comity, i.e., friendship between friendly nations, and as such form no basis for claims of legal right to recompense (although the governments of fishermen who are expelled without a phase-out period may justifiably respond in like unfriendly manner, enacting restrictive tariffs or similar economic handicaps). Several countries have made provision in their own laws for recognition of “traditional” or “historic” fishing for foreign fishermen on a basis of reciprocity, i.e., their fishermen would have similar rights in the exclusive fisheries zone of the foreign nation whose fishermen were permitted to continue fishing. Most such laws have been very recent. The problem is not new, however. Problems of access to the North Atlantic fisheries embroiled the United States and Great Britain immediately after the Revolutionary War, and were not resolved until 1910 by action of the Permanent Court of Arbitration at The Hague. Pelagic sealing inflamed relations between the United States and other nations in the late 19th century, requiring arbitration for settlement.
Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States
Authors: Franck Thomas M.
Published: April 2006

Twenty-five years ago, the Allied nations gathered at San Francisco in the warming glow of victory and signed a solemn treaty giving effect to their determination “to save succeeding generations from the scourge of war …” and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest …” Specifically, they undertook in Article 2(4) to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …” They also committed themselves to “settle their international disputes by peaceful means …”
International Law Aspects of Repatriation of Prisoners of War during Hostilities
Authors: Falk Richard A.
Published: April 2006

On September 2, 1972, the North Vietnamese Foreign Ministry issueda statement announcing the release of three American pilots who were being held in detention since their capture by North Vietnam. The statement gave no particular reason for the release except to affirm North Vietnam's “lenient policy” and to indicate that the release was being made “on the occasion” of an annual independence day holiday called National Day. It was subsequently learned that the release was part of a wider amnesty, which included Vietnamese citizens who had been sent to jail for ordinary criminal activity.
The Lateral Boundaries of the Continental Shelf and the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases
Authors: Grisel Etienne
Published: April 2006

A rule of customary international law of recent origin has conferred sovereign rights over the continental shelf to individual states for the limited purposes of exploration and exploitation. The attribution of such exclusive jurisdiction required the delimitation of boundaries between the submarine areas appertaining to various littoral states. The importance of such partition of the seabed and subsoil is self-evident, but two points do call for comment. First, since the shelf may be considerably extended in the future according to the criterion of exploitability, the method now adopted will have a constantly growing significance. Second, the acquisition of the sea bottom by coastal nations has created inequalities between them, depending on their relative degree of technical development as well as on their geographical circumstances. The drawing of boundaries separating their respective shelves can aggravate or diminish these inequalities.
Selden Redivivus—Towards a Partition of the Seas?
Authors: Friedmann Wolfgang
Published: April 2006

The General Assembly Resolution of December 17, 1970,1 has been widely acclaimed for its affirmation of the principles that
Legal Management of Internal War: The 1977 Protocol on Non-International Armed Conflicts
Authors: Forsythe David P.
Published: April 2006

At the Diplomatic Conference on Humanitarian Law held in Geneva from 1974 to 1977, it was pointed out that eighty percent of the victims of armed conflict since World War II have been created in noninternational armed conflict. Whatever the precision of this estimate, as of the mid-1970’s a number of important actors in world affairs were concerned about destruction of human values in internal war and sought restraints on that form of violence. This concern produced, as of June 10, 1977, a Protocol to the Geneva Conventions of August 12, 1949 relating to the protection of victims of noninternational armed conflict.
Austrian Practice on Lump Sum Compensation by Treaty
Authors: Seidl-Hohenveldern Ignaz
Published: April 2006

In the commentary on their monumental collection of lump sum compensation treaties, Lillich and Weston regret the lack of information concerning the negotiation of these agreements as well as the lack of relevant information concerning the distribution of the lump sums received. The present article endeavors to remedy this lack of information at least in regard to the Austrian practice that has come to the attention of the author.
Applicability of Multilateral Conventions to Occupied Territories
Authors: Meron Theodor
Published: April 2006

The failure at the 63rd International Labor Conference (Geneva, 1977) to adopt the Report of the Committee on the Application of Conventions and Recommendations was regarded by many delegates as yet another example of denial of due process by that organization and may have influenced the United States in its decision to withdraw from ILO. The decision of the Conference, although primarily political, had certain legal implications in so far as it suggested that an occupying power, such as Israel, may not apply international labor conventions to which it is a party to territories that it occupies.
Equitable Solutions to the Maritime Boundary Dispute Between the United States
and Canada in the Gulf of Maine
Authors: Rhee Sang-Myon
Published: April 2006

The United States and Canada agreed, by the Boundary Settlement Treaty of
March 29, 1979, to submit their decade-long dispute over the maritime boundary in
the Gulf of Maine area to a Chamber of the International Court of Justice (ICJ) or
to an ad hoc court of arbitration. The treaty, however, has not yet taken effect
because the interrelated Fisheries Agreement, which was concluded on the same day
and was to take effect simultaneously, was Unilaterally scrapped by the United
States Government on March 6, 1981, on grounds of its allegedly unfair and
inflexible provisions. On April 29, the United States Senate unanimously adopted a
resolution supporting the Government's position to delink the two treaties and to
settle the maritime boundary problem first by a third-party procedure. Whether or
not a new fisheries agreement is concluded in the near future, it is expected that
the maritime boundary dispute will ultimately be resolved by binding third-party
settlement. The purpose of this article is to examine the legal position taken by
each Government regarding the maritime boundary issues, and to suggest equitable
principles that should govern their resolution.
The International Law Standard in the Statutes of Australia and the United Kingdom
Authors: Crawford James
Published: April 2006

In a series of articles in this Journal, Professor Robert Wilson drew attention to the incorporation of references to international law in United States statutes, a technique designed to allow recourse to international law by the courts in interpreting and implementing those statutes, and, consequently, to help ensure conformity between international and U.S. law. The purpose of this article is to survey the references, direct and indirect, to international law in the 20th-century statutes of two Commonwealth countries in order to see to what extent similar techniques have been adopted. The choice of the United Kingdom and the Commonwealth of Australia as the subjects of this survey is no doubt somewhat arbitrary (although passing reference will be made to the legislation of Canada and New Zealand). But the United Kingdom, a semi-unitary state whose involvement in international relations has been substantial throughout the century, and the Commonwealth of Australia, a federal polity with substantial legislative power over foreign affairs and defense -whose international role has changed markedly since 1901, do provide useful examples of states with constitutional and legislative continuity since 1901, and (as will be seen) considerable legislative involvement in this field.
Sea Boundary Delimitation Between States Before World War II
Authors: Rhee Sang-Myon
Published: April 2006

Despite the increasing significance of customary law in the delimitation of sea boundaries between states, the principles that evolved during the three centuries prior to World War II have generally been ignored. Although a comprehensive study in this field is needed, the studies that exist begin either with the Truman Proclamation of 1945 or the discussions of the International Law Commission in the early 1950’s. The Commission itself declared that there was no law on the matter and attempted to legislate rules in the interest of the progressive development of international law. This hasty and ambitious attempt left a gap between the conventional law and customary law, which later resulted in many disputes.
The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise?
Authors: Feldman Mark B.
Published: April 2006

The result of the application of equitable principles must be equitable. … It is … the result which is predominant; the principles are subordinate to the goal.
The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981)
Authors: Oxman Bernard H.
Published: April 2006

The tenth session of the Third United Nations Conference on the Law of the Sea met in New York from March 9 to April 24, 1981 and resumed in Geneva from August 3 to August 28, 1981. The Drafting Committee and its organs also met from January 12 to February 27 in New York and from June 29 to July 31 in Geneva.
Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea
Authors: Buzan Barry
Published: April 2006

The Third United Nations Conference on the Law of the Sea (UNCLOS III) is important not only because of the scope and substance of the issues with which it is concerned, but also because it represents a major international experiment in decision making by consensus. Most of the attention it has attracted so far has been focused on the problems, progress, and prospects of the conferenceas a unique event. Given the magnitude of the matters at stake, not to mention the drama of the proceedings, this is natural enough. In addition, there is the risk of a severe blow to the process of international negotiation in general, and to the United Nations system in particular, should UNCLOS III fail. Only a few writers have so far begun systematically to discuss procedural developments at UNCLOS in terms other than those relating to the success or failure of the conference itself. Jonathan Charney and Bernard Oxman have pointed out the significance of procedural developments and precedents, Robert Eustis has begun the exploration of UNCLOS as a model of multinational negotiation, and Edward Miles has argued that nothing similar to UNCLOS should be tried again. United Nations concern about problems in the process of international negotiation in general is demonstrated by General Assembly Resolution 32/48 (December 8,1977), requesting a report on the techniques and procedures used in the elaboration of multilateral conventions.
Reservations to Multilateral Treaties: A Macroscopic View of State Practice
Authors: Gamble John King
Published: April 2006

Many vexing, complicated, and important problems of international law relate in some way to reservations to multilateral treaties. No doubt, the right of states to make reservations to multilateral treaties is important to the functioning of an international legal system, a major component of which is multilateral treaties. As Edwin Hoyt pointed out two decades ago, the unanimity rule has given way to a much more flexible standard which permits reservations under many circumstances. Thus, the position adopted here is that many important questions should be asked about when and how reservations are used and what their aggregate impact has been. This approach contrasts with most others which concentrate on the legality of reservations. Reservations to multilateral treaties are a fact of life that can be evaluated and analyzed.
Economic Development and Sovereign Immunity
Authors: Delaume Georges R.
Published: April 2006

Both the rules of sovereign immunity and the law of economic development are undergoing a noteworthy evolution. Both have inspired an abundant literature. Yet, for the most part, the literature in point approaches each subject individually and makes no attempt to consider whether the rules obtaining in one discipline might affect those of the other.
Stopping the Indian Bomb
Authors: Milhollin Gary
Published: April 2006

South Asia is now poised for a nuclear arms race. Pakistan has learned how to make enriched uranium—the material that destroyed Hiroshima— and has been buying the electronic switches and hollow steel spheres used for implosion. It has tested, successfully, an implosion bomb with a dummy core. On the Indian side, Prime Minister Rajiv Gandhi has been saying that India could make an atomic bomb “in a matter of several weeks” and “could have done so for the past ten or eleven years.”