bluuebunny/crossref_metadata_2025 huggingface dataset:
Dag Hammarskjold and the Relation of Law to Politics
Authors: Schachter Oscar
Published: April 2006

The sudden and tragic death of Dag Hammarskjold on September 17, 1961, evoked throughout almost the entire world a sense of grief and loss that was without parallel in recent times.
Mr. Hammarskjold, the Charter Law and the Future Role of the United Nations Secretary General
Authors: Stein Eric
Published: April 2006

[This article was completed in the summer of 1961 before Dag Hammarskjold’s tragic death. It was intended primarily to provide an account of Mr. Hammarskjold’s own concept of the legal-constitutional framework within which he performed his high office. The article is now offered—without modification—as a modest tribute to a man who has left an historic imprint on the development of international law and organization.]
The Merger of the Institutions of the European Communities
Authors: Weil Gordon L.
Published: April 2006

On April 8, 1965, the representatives of the six member states (Belgium, France, Federal Republic of Germany, Italy, Luxembourg and The Netherlands) of the European Communities signed the “Treaty Establishing a Single Council and a Single Commission of the European Communities.” The treaty’s principal object is to replace the executive bodies of the three Communities, i.e., the Commissions of the European Economic Community (E.E.C.) and the European Atomic Energy Community (EURATOM) and the High Authority of the European Coal and Steel Community (E.C.S.C.) by a single European Commission. At the same time, the Councils of Ministers of these three Communities are to be merged into one Council. This Merger Treaty is intended to be the first step toward the ultimate merger of the E.C.S.C, instituted by the Treaty of Paris of April 18, 1951, and the E.E.C. and EURATOM, instituted by the Eome Treaties of March 25, 1957.
Developments in the Law and Institutions of International Economic Relations–The Kennedy Round of Trade Negotiations
Authors: John B. Rehm
Published: April 2006

On June 30, 1967, in Geneva, Switzerland, Ambassador W. Michael Blumenthal, acting at the direction of the President, signed five multilateral agreements on behalf of the United States. He and the representatives of 45 other countries thereby concluded the Kennedy Round of trade negotiations and formalized an elaborate set of international obligations which, over a period of four years, would see the most extensive liberalization of trade ever achieved through co-operative action on the part of the trading countries of the world.
A Framework for the Legal Analysis of War-Peace Issues
Authors: Carlston Kenneth
Published: April 2006

To state the province and function of law in the control of war requires an understanding, in the broadest possible terms, of the nature of interstate conflict in the twentieth century. When such an understanding is reached, it will be seen that the traditional methodology of international law is inadequate for handling war-peace issues. While international lawyers should be faithful to the legal tradition of fact inquiry and judgment on the basis of legal norms, they should enlarge their perspective of international conflict and restructure their approach to the problem of war. The elaboration of this thesis is the subject of this note.
Business and Tax Services
Authors: Brewer W. C.
Published: April 2006

Selection of a library can be a troublesome problem for the lawyer advising clients with international problems. Fortunate is he whose office is but a stone’s throw from the library of a great law school or one of the few Bar Association libraries with the knowledge and funds to enter the foreign field. Most lawyers must get along with the relatively few materials which can be made available in their office or in the local law library.
The Andean Foreign Investment Code: A New Phase in the Quest for Normative Order as to Direct Foreign Investment
Authors: Oliver Covey T.
Published: April 2006

Signs of inadequacy and crisis in general international law as to the economic ownership interests of aliens have been numerous since World War II. The pages o f the J ournal have recorded and analyzed a number of situations in which the existing legal order is not working well: ineffectual resorts to international adjudication; unilateral disregard of arbitral commitments; national decisions made in the name of international law but of dubious international acceptability; professional frustrations so intense as to have directed prime attention to happenstantial “salvage” operations. In a phase now apparently ended, groups in capital exporting countries have tried time after time to put forward normative formulations of investment codes as new positive law, only to have their efforts ignored in developing countries. Now we seem to be in a new phase, one in which direct investment-receiving, or host, countries, organized into groups or regional arrangements, compact among themselves that a comprehensive normative system shall prevail in each of them as to the legal relationships between foreign investors and each of those countries. Although foreign investment codes for particular states, including systems of prior restraints on entry in some developed countries, are not new, the Andean Foreign Investment Code is, indeed, a new juristic phenomenon. The Editors of the Journal have wished, therefore, to record and analyze preliminarily this new development in transnational investment law, one whose text has been carried in International Legal Materials and considered as to its possible impact in Research Panels organized by the American Society of International Law.
International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply
Authors: Levie Howard S.
Published: April 2006

In the July 1973 issue of the Journal, there appeared an article with the above title written by Professor Richard Falk, in which he, in effect, advanced the thesis that the release of prisoners of war for repatriation during the course of hostilities in Vietnam to an ad hoc and self-styled “humanitarian organization” (which admittedly consisted solely of individuals who were vocal opponents of the United States participation in those hostilities) either constituted a valid and forward-looking interpretation of the provisions of the Geneva Convention of 1949 relative to the Treatment of Prisoners of War (hereinafter referred to as “the 1949 Convention”) or indicated the need for revision of that instrument. The subject appears to be one which calls for an analysis in considerably greater depth than the treatment provided in the article by Professor Falk.
South West Africa and the “Terrorist Trial”
Authors: Dugard John
Published: April 2006

The recent trial in Pretoria of thirty-seven South West Africans on charges of “participation in terroristic activities” focused international attention yet again on the mandated territory of South West Africa. The trial, conviction and sentencing of the accused evoked protest and condemnation from the United Nations on the ground that, as a result of General Assembly Resolution 2145 (XXI), South Africa had lost jurisdiction over the territory and hence the competence to try the accused at all. On December 16, 1967, while the trial was in progress, the General Assembly, by 110 votes to two (Portugal and South Africa), condemned the “illegal arrest, deportation, and trial” of the accused, and on the eve of the judgment in the case on January 25, 1968, the Security Council in a unanimous resolution called upon the Government of South Africa “to discontinue forthwith this illegal trial and to release and repatriate the South West Africans concerned,” a call which was converted into a “demand” by a further unanimous resolution on March 14, 1968, after many of the accused had been sentenced to long periods of imprisonment. The South African Government, however, arguing that Resolution 2145 (XXI) was invalid and that it was fully competent in law to prosecute the accused for offenses committed in South West Africa, declined to accept these “calls” and “demands.”
The International Law Standard in Recent Treaties and Agreements of the United States
Authors: Wilson Robert R.
Published: April 2006

The nature, form and utility of conventional commitments which states make to other states concerning international law continue to invite consideration by foreign offices and by students of this law. Recent formulation of rules concerning treaties provides instructive reminder of the need for clarifying to the greatest extent that is practicable the nature, form and utility of public international commitments. One purpose of a conventional agreement may be to commit the party states to act in accordance with the standard which is international law. Recent United States practice reveals relatively frequent resort to this method.
Developments in the Law and Institutions of International Economic Relations: American Foreign Trade and Investment Policy for the 1970's: The Williams Commission Report
Authors: Metzger Stanley D.
Published: April 2006

On May 21, 1970, President Nixon appointed a Commission on International Trade and Investment Policy to study the principal problems faced by the United States in this field, assess present U.S. policy, and produce a set of policy recommendations for the 1970s which would take account of the changes that have taken place on the world economic scene since the end of World War II. Twenty-seven members from business, labor, agriculture, and the universities (a substantial majority from business) were appointed, under the chairmanship of Albert L. Williams, Chairman of the Finance Committee of International Business Machines. The Williams Commission rendered its report in July, 1971: “United States International Economic Policy in an Interdependent World.”
Berlin and the Quadripartite Agreement of 1971
Authors: Doeker Günther , Melsheimer Klaus , Schröder Dieter
Published: April 2006

The present legal status of Berlin after the conclusion on September 3, 1971 of the Quadripartite Agreement between France, the Soviet Union, the United Kingdom, and the United States can only be understood in terms of its own historical development and the context of the international politics of the 1960s. Although any legal and political analysis of divided Germany and Berlin must take into account a period of history dating back to the 1940s, it is assumed here that the essential facts are sufficiently well known to serve as a background for the following analysis.
The Cambodian Operation and International Law
Authors: Falk Richard A.
Published: April 2006

“I believe the United States has a strong interest in developing rules of international law that limit claimed rights to use armed force and encourage the peaceful resolution of disputes.”

John R. Stevenson, Legal Adviser, “United States Military Actions in Cambodia: Questions of International Law,” 62 Department of State Bulletin 765, 766 (1970).
The Protection of Shareholders' Interests in the Light of the Barcelona Traction Case
Authors: Mann F. A.
Published: April 2006

Professor Briggs’ summary of the decision of the International Court of Justice in the Case Concerning the Barcelona Traction, Light and Power Company Limited fairly recapitulates the principal reasons which led the Court to deny “the existence of any general rule of international law or of any special circumstances or considerations of equity which confer a right of diplomatic protection of national shareholders in a foreign company where the acts complained of were directed by authorities of a third state against the company rather than against any legal rights of the shareholders as such.”
Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. the United Kingdom
Authors: O’Boyle Michael
Published: April 2006

With the arrival of the British Army in August 1969, in aid of the civil power, intercommunal strife in Northern Ireland entered a new phase, which saw the regeneration of the Irish Republican Army (IRA) and the emergence of a guerrilla conflict between the IRA and British Army. In the first half of 1971, 8 civilians, 10 soldiers, and 2 members of the Royal Ulster Constabulary (RUC) had been killed; 454 civilians, 110 soldiers, and 71 policemen had been injured. In July 1971 alone, traditionally a period of acute tension, there had been 86 explosions, 2 soldiers had been shot dead, and 21 persons injured. It was this rising tide of violence that set the scene for the introduction of internment without trial on August 9, 1971.
Of Missionaries, Fanatics, and Lawyers: Some Thoughts on Investment Disputes in the Americas
Authors: Rogers William D.
Published: April 2006

Sir Harold Nicholson had it about right. Diplomacy, he said,

is not a system of moral philosophy; it is, as Sir Ernest Satow defined it, “the application of intelligence and tact to the conduct of official relations between the governments of independent States.” The worst kind of diplomatists are missionaries, fanatics and lawyers; the best kind are the reasonable and humane sceptics.

Investment disputes have attracted their fair share of missionaries, fanatics, and lawyers in the Western Hemisphere. There may be evidence, though, that some relatively reasonable sceptics are making their voices heard.
The Third United Nation’s Conference on the Law of the Sea: The 1977 New York Session
Authors: Oxman Bernard H.
Published: April 2006

The sixth session of the Third UN Conference on the Law of the Sea was held in New York from May 23 to July 15, 1977.

The Conference confirmed two procedural decisions taken at the close of the fifth sesison—to devote the first two or three weeks of the sixth session to Committee I (deep seabed) problems and to entrust the President and Committee Chairmen with the preparation of an informal composite text of the treaty as a whole later in the session. In the interim between the fifth and sixth sessions, Minister Jens Evensen of Norway, Vice-President of the Conference, who at an earlier stage of the Conference had held lengthy informal meetings on economic zone matters with marked success, arranged for an intersessional meeting in Geneva early in 1977 on the deep seabeds sytem of exploitation, to which all conference participants were invited. Minister Evensen continued these efforts at the Conference itself, reporting to the Chairman of the First Committee.
Declarations by Judges of the International Court of Justice
Authors: Jhabvala Farrokh
Published: April 2006

Judges of the International Court of Justice have a variety of vehicles through which they may express their judicial opinions. There are, in the first place, the judgments and opinions of the Court—results of the collegial deliberations—to which every judge may contribute. If, however, the judgment or opinion of the Court does not represent “in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.” And, despite misgivings on the part of some scholars early in the experience of the Permanent Court of International Justice, this right conferred by Article 57 of the Statute of the Court has been consistently interpreted as allowing individual and joint separate and dissenting opinions. Finally, Article 95 of the Rules of Court, adopted on April 14, 1978, provides, inter alia, that “[a]ny judge may, if he so desires, attach his individual opinion to the judgment, whether he dissents from the majority or not; a judge who wishes to record his concurrence or dissent without stating his reasons may do so in the form of a declaration.”
The People’s Republic of China and the Charter-Based International Legal Order
Authors: Kim Samuel S.
Published: April 2006

The entry of the People’s Republic of China (PRC) into the world community has renewed an old question in a new global setting: Is China a help or a hindrance to international law and order? What impact, if any, has China made upon the evolution of the Charter-based international legal order? Conversely, what impact, if any, has the international legal order had on the Chinese conception and practice of international law? China’s participation for over six years in the activities of the United Nations, the specialized agencies, and UN-sponsored conferences, many of which are engaged in the development and clarification of law, now makes it possible to subject the above questions to a disciplined behavioral analysis.
International Law in the New Greek Constitution
Authors: Fatouros A. A.
Published: April 2006

The new Greek Constitution which entered into force on June 11, 1975, offers to international lawyers an illustration of the increasing importance given to international legal issues by politicians and constitutional experts as they attempt to fashion constitutional structures more in keeping with contemporary international realities. The provisions of the new Constitution concerning international law and relations which are discussed here are largely consistent with current constitutional trends in Western Europe. They, and the debate around them, may also yield useful insights into the role and importance of the international legal context for a small country actively involved in and influenced by world affairs. They are thus of interest not only to those who follow political events in Greece but to a wider public concerned with democracy and internationalism.
The Francis Deák Prize
Authors: A.P.S.
Published: April 2006

Each year, the Board of Editors of the American Journal of International Law awards a prize in memory of the late Francis Deák for an especially meritorious article appearing in the Journal. The Prize for 1976 has been conferred on Mr. Günther Handl for his article “Territorial Sovereignty and the Problem of Transnational Pollution,” appearing in the January 1975 issue at page 50.
The U.S. Generalized System of Preferences for Developing Countries: International Innovation and the Art of the Possible
Authors: Graham Thomas R.
Published: April 2006

On January 1, 1976, some 2,700 articles from 137 developing countries and territories became eligible to enter the United States free of import duties. By this overnight elimination of tariffs that had ranged as high as 28 percent, on articles as diverse as sausage and spacecraft, from countries as different as Brazil and Bangladesh, the United States became the twenty-third and most recent industrialized country to implement a “Generalized System of Preferences” (GSP), permitting imports from developing countries to enter at lower rates of duty than those applicable to the same products from industrialized countries.
The Arab Oil Weapon—A Threat to International Peace
Authors: Paust Jordan J. , Blaustein Albert P.
Published: April 2006

The month of October, 1973, brought with it Arab coercion in two forms: the first was the military attack against Israeli forces begun on October 6 ; the second was the use of economic coercion against countries that, in Arab eyes, either supported Israel or did not support the Arabs in their present quests (which include the return of claimed “Arab” lands, favorable settlement of the Palestinian peoples' claim for self-determination, and other political and military objectives).
International Arbitrations between States and Foreign Private Parties: the
Libyan Nationalization Cases
Authors: von Mehren Robert B. , Kourides P. Nicholas
Published: April 2006

On November 29 and 30, 1971, Iran occupied three islands, which were
nominally under British protection, in the Persian Gulf. As a result of Britain’s
failure to prevent the occupation, the Government of the Libyan Arab Republic, on
December 7, 1971, announced the nationalization of all of the interests and
properties in Libya of BP Exploration Company (Libya) Limited (BP), a subsidiary
of British Petroleum Company Limited. On September 1, 1973, on the fourth
anniversary of the military takeover of Libya led by Colonel Muammar el-Qaddafi,
the Government of Libya announced the nationalization of 51 percent of the
interests and properties in Libya of nine international oil companies.
Approximately 5½ months later, on February 11, 1974, on the eve of the opening of
the Washington conference of major oil-importing nations, the Government of Libya
announced the nationalization of the remaining 49 percent of the interests and
properties in Libya of three of those nine companies: Texaco Overseas Petroleum
Company (TOPCO), a subsidiary of Texaco Inc.; California Asiatic Oil Company
(CALASIATIC), a subsidiary of Standard Oil Company of California; and the Libyan
American Oil Company (LIAMCO), a subsidiary of Atlantic Richfield
Company.
Freedom of the Air and the Convention on the Law of the Sea
Authors: Hailbronner Kay
Published: April 2006

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.
Restructuring Transnational Mineral Agreements
Authors: Asante Samuel K. B.
Published: April 2006

Within our own generation no less than 70 countries have attained political independence and joined the international community of nation states. Third World countries now command a preponderant majority in the United Nations and other world bodies, yet it is trite knowledge that the attainment of political independence and the proliferation of nation states in the Third World have had little impact on the world economic power structure. Access to the corridors of the United Nations and other international bodies has not necessarily assured effective participation in the shaping and restructuring of the world economic system. After the first flush of exhilaration over political independence, developing countries have now grasped the sobering fact that sovereignty is not synonymous with economic self-sufficiency or development and that the rich industrialized countries still substantially control the production and distribution of the world’s resources. An analysis of European direct investment in Africa shows that by the end of 1967 the former metropolitan powers still dominated investments in their former colonies. (The percentage of the total foreign investments in these African countries held by the former imperial powers is illustrated in table 1.)
The Gatt and Multilateral Treaty Making: The Tokyo Round
Authors: McRae D. M. , Thomas J. C.
Published: April 2006

Multilateral treaty making, sometimes called the "international legislative process", occurs in a variety of forms and under the auspices of many international organizations. Concern that insufficient information is available about the way treaties are negotiated in different forums and that the process is haphazard led to a proposal for its review in the Sixth Committee at the 32d session of the United Nations General Assembly. Acting upon.this initiative, the General Assembly adopted Resolution 32/48, which called upon the Secretary- General to report on the techniques and procedures used in the elaboration of multilateral treaties. In order to assist in the preparation of this report, comments were requested from states, specialized agencies and other intergovernmental organizations, and the offices of the United Nations.
User Charges in International Aviation
Authors: Vogue L. Welch , Davison Calvin
Published: April 2006

The charges that air carriers pay for the use of airports and airways to provide international air service have become a source of recurrent and heated controversy between governments. This controversy largely stems from the rapid rise in user charges over the last decade, but it has been fed by the lack of uniformity practiced by some countries in levying these charges. Thus, the relatively specialized issue of user charges involves some important general concerns of international law, such as international economic cooperation (in the matter of arriving at general agreement on what constitutes reasonable charges), discrimination, and most-favorednation treatment.
The Inter-American Court of Human Rights
Authors: Buergenthal Thomas
Published: April 2006

The Inter-American Court of Human Rights has drafted its Statute, adopted its Rules of Procedure, negotiated its headquarters agreement, and so far dealt with its first case. It is timely, therefore, to describe the Court’s institutional framework and to analyze its jurisdiction. A more extensive study, of course, will have to await its developing case law.
The Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication
Authors: Reisman W. Michael , Freedman Eric E.
Published: April 2006

A suit cannot be pressed, whether on the domestic or international level, without supporting evidence. The processes of gathering such evidence are carefully regulated in many developed legal systems, in part because experience has shown that too zealous a pursuit of evidence can easily transform institutions designed to resolve conflict into a rationalization and a setting for possibly even more rancorous conflict. When some part of the state apparatus is prosecuting a case, liberal democracies have often imposed more stringent regulations as part of what we may call, in a nondocumentary sense, the “constitutional” or “rule of law” tradition, that continuing compact between governors and governed about restraint in the use of official power.
The New World Satellite Order: A Report from Geneva
Authors: Staple Gregory C.
Published: April 2006

In a city that hosts a continuous series of international gatherings, last year’s path-breaking Geneva conference on satellite communications went largely unnoticed as the news media concentrated on preparations for the Reagan-Gorbachev summit. Yet for many of the 112 nations attending this 6-week-long assembly, the results of the meeting—the launch of a new global satellite plan—were arguably more significant (albeit less “telegenic”) than the East-West rapprochement that followed.
Philip Jessup’s Life and Ideas
Authors: Schachter Oscar
Published: April 2006

Philip Jessup’s life was richly varied. Scholar, practitioner, teacher, administrator, diplomat, judge, prolific writer—he moved from role to role, displaying in each his abundant gifts of character and intellect. Every new job, each fresh subject was a challenge met with zest and high spirits. As a scholar, he was drawn to the issues of the day. He never hesitated to take sides when he felt he had good grounds to do so. In his classes and writings, he was as concerned with practical action as with new ideas. Endowed with a commanding presence, a remarkably resonant voice and a talent for lucid and lively expression, Jessup had no difficulty in getting the attention of an audience. He used concepts sparingly, but effectively, and he avoided windy rhetoric. On the whole, he favored narrative exposition, particularly highlighting the aims and predicaments of the individual actors. People, it seems clear, were more real to him than the abstractions of law or political theory. He was a stickler for thorough and detailed research, as his judicial opinions and books show. Concrete, unique facts were important to him; he had to get them right. Historical detail and revealing quotations were used by him with telling effect.
III
Authors: Hyde James N.
Published: April 2006

Throughout his career, Philip C. Jessup was passionately committed to the use of law and diplomacy for the peaceful settlement of international disputes. He provided a generation of leadership in the wide and difficult endeavor that he characterized as “transnational law”—by which he meant to emphasize the importance of a wider storehouse of rules and avoidance of the dogmas and fictions associated with traditional international law.
Determining U.S. Responsibility for Contra Operations Under International Law
Authors: Boyle Francis A.
Published: April 2006

The only significant point of disagreement this author might have with the June 27, 1986 decision on the merits by the International Court of Justice in the case of Nicaragua v. United States of America concerns its failure to hold the United States Government fully responsible for the violations of the laws and customs of warfare committed by the contra forces in Nicaragua. The Court carefully premised this result on the finding that it had insufficient evidence to reach a definitive conclusion on such a delicate matter. Nevertheless, the Court held it established that the U.S. Government largely financed, trained, equipped, armed and organized the contras. Somewhat questionably, in the Court’s estimation, it remained to be proven that the Reagan administration actually exercised operational control over the contra forces.
Drawing the Right Line
Authors: Farer Tom J.
Published: April 2006

As a recurring feature of the Cold War that has dominated international relations for the past four decades, foreign intervention in civil armed conflicts has focused and inflamed scholarly debate over the content of the relevant legal restraints. Conflict has raged particularly around the following issues: First, what forms and degree of assistance to rebels constitute an armed attack within the meaning of Article 51 of the Charter authorizing individual and collective self-defense? Second, in cases where assistance does not reach the armed attack threshold, are there any circumstances in which the target state and/or its allies may nevertheless use forceful measures to terminate it?
International Travel Restrictions and the Aids Epidemic
Authors: Nelson Leonard J.
Published: April 2006

AIDS is truly an international phenomenon, with cases now reported on every continent. To combat the AIDS epidemic, the nations of the world may be reverting to a pattern of quarantine and restrictions on international travel. For example, on April 23, 1986, the Federal Register gave notice of a rule proposed by the Centers for Disease Control of the United States Public Health Service that, if enacted, will add AIDS to the list of seven diseases that provide grounds for exclusion of aliens. This action would allow the U.S. Department of State to deny visas and the Immigration and Naturalization Service to deny admission to aliens subject to medical examination (generally immigrants and refugees) who are found to have AIDS. Although seemingly innocuous, the proposed regulation was initially seen by gay rights groups as an instrument that could potentially be used to harass homosexuals and other high-risk groups seeking entry to the United States. The proposed regulation also contrasts with the U.S. Public Health Service’s domestic strategy for coping with AIDS, which emphasizes education rather than quarantine as the principal means of controlling the disease.
The Geneva Conventions as Customary Law
Authors: Meron Theodor
Published: April 2006

At first glance, the question of the customary character of the Geneva Conventions of August 12, 1949 for the Protection of Victims of War might appear academic. After all, the question arises infrequently in view of the universal acceptance of the Conventions as treaties (they are binding on even more states than the Charter of the United Nations). That the matter may have practical importance, however, was recently brought home by its consideration by the International Court of Justice (ICJ) in the merits phase of Military and Paramilitary Activities in and against Nicaragua. Moreover, in numerous countries where customary law is treated as the law of the land but an act of the legislature is required to transform treaties into internal law, the question assumes importance if no such law has been enacted. Failure to enact the necessary legislation cannot affect the international obligations of these countries to implement the Geneva Conventions; but invoking a certain norm as customary rather than conventional in such situations may be crucial for ensuring protection of the individuals concerned.
ICSID Arbitration and the Courts
Authors: Delaume Georges R.
Published: April 2006

The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Convention) provides for a truly international arbitration machinery, operating under the auspices of the International Centre for Settlement of Investment Disputes (ICSID).
Ocean Boundaries Between Nations: A Theory for Progress
Authors: Charney Jonathan I.
Published: April 2006

In the last two decades, there have been three major international adjudications on continental shelf boundaries between states. Three additional cases are now pending before international tribunals. Two concern continental shelf boundaries and the other, a single exclusive economic zone and continental shelf boundary. There is every reason to believe that more cases are on the way. During this period, many international agreements have been negotiated to settle similar international ocean boundary disputes. Nevertheless, the vast majority of such boundaries have yet to be resolved.
Conjuring Up New Human Rights: A Proposal For Quality Control
Authors: Alston Philip
Published: April 2006

Writing in 1968, the year of the 20th anniversary of the adoption of the Universal Declaration of Human Rights, Richard Bilder concluded that “in practice, a claim is an international human right if the United Nations General Assembly says it is.” Fifteen years later, as the 35th anniversary is celebrated, the authoritative role that Bilder correctly attributed to the General Assembly is in serious danger of being undermined.
M.A. A26851062 v. Immigration and Naturalization Service
Authors: Detzner John A.
Published: April 2006

On remand after reversal of a prior denial of a motion to reopen deportation proceedings and a final order of deportation, petitioner, a native and citizen of El Salvador, presented a renewed application for political asylum as a refugee under section 208(a) of the Immigration and Nationality Act (8 U.S.C. §1158(a) (1982)) (INA or Act). The Immigration Judge found that petitioner had failed to present a prima facie case for eligibility under section 208(a) of the INA, a prerequisite to reopening his deportation proceedings for a hearing on the merits of the asylum claim, and therefore denied petitioner’s motion to reopen and issued another final order of deportation. Petitioner appealed, and the Board of Immigration Appeals (BIA) affirmed. On petition for review of the BIA’s decision, the U.S. Court of Appeals for the Fourth Circuit (per Winter, J.) reversed the order denying the motion to reopen, remanded the case for determination on the merits of whether petitioner is eligible to be granted political asylum, and held: that petitioner had made a prima facie case that he merits refugee status and thus consideration for political asylum on the basis of his sincere refusal to participate in actions of the Salvadoran Armed Forces condemned by the international community and the likelihood that he would be punished for his refusal to serve with those forces. Judge Murnaghan filed a concurring opinion. On January 5, 1989, the Fourth Circuit granted the Justice Department’s request for a rehearing en banc based on the Department’s position that the decision presented an issue of “exceptional importance” and could have “an enormous potential impact” on U.S. asylum law.
A New Approach to Human Rights: The European Convention for the Prevention of Torture
Authors: Cassese Antonio
Published: April 2006

A review of the current state of legal regulation in the field of human rights is likely to give the disappointing impression that international legislation is unequal to the task of checking widespread disregard for human dignity. Despite the vast proliferation of instruments setting standards on human rights, imposing obligations as regards the observance of those standards and establishing procedures to deal with breaches of those obligations, violations of human rights continue, their perpetrators apparently undeterred.
“Exclusive Preserves” and the New Soviet Policy Toward the Un Secretariat
Authors: Meron Theodor
Published: April 2006

An “exclusive preserve” of a state in the UN Secretariat is a post that is continuously filled by nationals of the same state. Virtually from the founding of the United Nations, the Secretariat has observed an “unofficial” practice of exclusive preserves for many senior posts held by nationals of several influential states, including the United States; but its most persistent advocate, and with regard to a particularly wide range of posts, has been the Soviet Union. In view of the past underrepresentation of Soviet nationals in the Secretariat, largely because the Soviet Government insisted that its nationals be recruited only on fixed-term contracts based on secondment from the Government and Soviet institutions, a considerable number of posts were set aside to be filled on a replacement basis. The occupants of those posts were selected by the Secretary-General from a very short list of candidates submitted by the Soviet Government. The object of this Editorial is to assess the impact of the new Soviet policy toward the UN Secretariat, recent General Assembly resolutions and the jurisprudence of the United Nations Administrative Tribunal on the practice of exclusive preserves.
Bank of Hawaii v. Balos
Authors: Chinen Mark A.
Published: April 2006

Plaintiff bank, incorporated under the laws of the state of Hawaii, brought an action in the United States District Court for the District of Hawaii against defendants, residents and citizens of the Republic of the Marshall Islands (RMI). One of the defendants, Imata Kabua, moved to dismiss the complaint for lack of subject matter jurisdiction on the ground that diversity of citizenship did not exist because defendants were not citizens of a “foreign state” within the meaning of 28 U.S.C. §1332(a)(2). The district court (per King, J.) denied the motion and held that diversity jurisdiction exists because the RMI, although technically retaining membership in the Trust Territory of the Pacific Islands (TTPI), has de facto become a foreign state.
Covert Operations
Authors: Damrosch Lori Fisler
Published: April 2006

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action—before the intelligence oversight reforms of the 1970s—Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to “perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct,” Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an end with the Watergate disclosures of intelligence activities that many Americans found reprehensible, the ensuing investigations into assassination attempts and other controversial covert actions, and the adoption of a new statutory framework for congressional oversight of the intelligence agencies.
Consolidated Gold Fields Plc v. Minorco, S.A.
Authors: Callcott W. Hardy
Published: April 2006

Minorco, S.A., a Luxembourg mining company allegedly controlled by South African interests, commenced a tender offer for Consolidated Gold Fields, PLC (Gold Fields), a British mining company. Gold Fields, together with its partially owned American subsidiary, Newmont Mining Corp. (Newmont), filed suit in U.S. federal district court to enjoin the tender offer. The district court held that Newmont, the affected American subsidiary, had standing to raise an antitrust claim and issued a preliminary injunction restraining the tender offer. The district court dismissed a claim based on alleged violation of U.S. securities laws for lack of subject matter jurisdiction and held that Gold Fields, as the target company, did not itself have standing to raise an antitrust claim. On appeal, the Court of Appeals for the Second Circuit (per Newman, J.) reversed in part and affirmed in part, holding that: (1) Newmont had standing under the U.S. antitrust laws to object to the tender offer; (2) Gold Fields also had antitrust standing (by 2-1); and (3) the U.S. courts did have subject matter jurisdiction over Gold Fields’s U.S. securities law claims. Accordingly, the court of appeals upheld the injunction and returned the case to the lower court for further proceedings. On remand, the district court found that inasmuch as Gold Fields had not demonstrated a likelihood that its U.S. securities law claims would be successful on the merits, those claims did not merit an injunction. The court also ruled that Minorco had failed to demonstrate that its plan to hold separate and sell the assets of Gold Fields posing the possible antitrust problem would provide adequate protection, and so kept the injunction against the tender offer in place. As a result, even though a majority of the Gold Fields shareholders had tendered their shares to Minorco and both British and European Communities regulatory authorities had approved the transaction, Minorco was forced to abandon its tender offer.
In Re State of Norway
Authors: Boyd Stephen M.
Published: April 2006

A Norwegian court issued two letters of request under the Hague Evidence Convention asking for the assistance of the English High Court in compelling testimony from two witnesses residing in England in connection with proceedings in Norway to collect taxes assessed against the estate of a wealthy Norwegian shipowner. After extensive litigation, Norway and the estate appealed to the House of Lords from a decision by the Court of Appeal that English courts lacked jurisdiction to accede to the requests because the Norwegian proceedings involved fiscal matters not within the meaning of “civil or commercial matters” as used in section 9(1) of the Evidence (Proceedings in Other Jurisdictions) Act of 1975 (ch. 34), which was enacted to implement the Hague Evidence Convention. The witnesses sought to uphold the Court of Appeal’s decision on lack of jurisdiction; they argued in the alternative that, even if there were jurisdiction, the letters of request should be denied execution because they constituted either an impermissible fishing expedition or “tax gathering” inconsistent with the decision in Government of India v. Taylor, or because execution would compel the witnesses to breach their duty of confidentiality as bankers. The House of Lords decided each of these issues in favor of Norway and the estate, and affirmed (i.e., “did not disturb”) the order obtained by Norway to compel testimony.
Agora: The U.S. Decision not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims (Cont’d)
Authors: Sofaer Abraham D.
Published: April 2006

The October 1987 issue of the Journal contains an article written by Hans-Peter Gasser, the Legal Adviser to the Directorate of the International Committee of the Red Cross (ICRC), on the U.S. decision not to ratify Protocol I (on international armed conflicts) to the 1949 Geneva Conventions on the Protection of War Victims. Unfortunately, the Journal did not include any response by the administration, but only the President’s necessarily brief letter of transmittal to the Senate of January 18, 1987, recommending advice and consent to ratification of Protocol II (on noninternational conflicts). The President’s letter of transmittal was not intended to be an exhaustive statement of the U.S. objections to Protocol I, nor does it purport to be such.
Iraq and the Force of Law: Why Give A Shield of Immunity?
Authors: Caron David D.
Published: April 2006

As these words are written, the use of armed force to liberate Kuwait, and all the suffering and waste such use implies, becomes more likely. Given the primacy of the peaceful settlement of disputes in international law, I consider in this brief essay how the rule of law could play a role in this crisis. The UN Security Council’s call for the collection of information regarding possible war crimes by Iraqi officials and possible claims for damages arising out of the invasion was a welcome innovative effort, although it has yet to have any perceptible effect. That move, however, did not fully embrace the rule of law as a solution or make clear to Iraq the force that the rule of law can bring to bear. If the Security Council made an effort to implement the rule of law more forcefully, in my view it would greatly diminish the felt need to use armed force against Iraq.
Common Rights of Mankind in Gentili, Grotius and Suárez
Authors: Meron Theodor
Published: April 2006

Students of the concept of erga omnes trace its antecedents to the early recognition of the right of humanitarian intervention, which they often attribute to Grotius. Professor Hersch Lauterpacht asserted that Grotius’s writings contained “the first authoritative statement of the principle of humanitarian intervention— the principle that exclusiveness of domestic jurisdiction stops when outrage upon humanity begins.” However, some of the other principal works on international law before the Peace of Westphalia (1648) reveal that the concept of community interests, and the modern right of humanitarian intervention it spawned, is pre-Grotian, that it appeared in the writings of Suárez and figured prominently in those of its true progenitor, the earlier Gentili.
National Union Fire Insurance Co. of Pittsburgh v. People’s Republic of the Congo.
Authors: Delaume Georges R.
Published: April 2006

This appears to be the first decision dealing with the recognition in the United States of a foreign judgment rendered against the government of a third country. At issue was the recognition of a default judgment rendered by the English High Court of Justice, Chancery Division, against the People’s Republic of the Congo (Congo). The facts leading to the English judgment were as follows. In 1984 the Congo issued to an English bank a promissory note in the amount of over $26 million corresponding to a Credit Facility Agreement (Credit Agreement) with the bank. At the same time, the National Union Fire Insurance Co. of Pittsburgh (NUFI) became the insurer of the Congo’s obligations under the note. When the Congo failed to make payment, NUFI paid in its stead and became subrogated to the rights of the lender.
Contemporary Practice of the United States Relating to International Law
Authors: Nash Marian , (Leich)
Published: April 2006

In response to a request from the court to the Legal Adviser of the Department of State, by a letter dated November 29, 1995, the United States submitted a Statement of Interest in Meridien International Bank Ltd. v. Government of the Republic of Liberia. The United States stated that the executive branch had determined that allowing the (second) Liberian National Transitional Government (LNTG II) access to American courts was consistent with U.S. foreign policy. The court, the United States maintained, should therefore accord that Government standing to assert claims and defenses in the action on behalf of the Republic of Liberia.