bluuebunny/crossref_metadata_2025 huggingface dataset:
National Courts and Human Rights—The Fujii Case
Authors: Wright Quincy
Published: April 2006

In the case of Sei Fujii v. The State, the District Court of Appeals of California held that a State statute which prohibited aliens ineligible to citizenship from acquiring land within the State was “in direct conflict with the plain terms” of provisions concerning human rights in the United Nations Charter, a treaty binding upon the United States. Consequently, land granted to a Japanese in 1948 did not escheat to the State. The case involves important questions of United States constitutional law, of international law, and of legal policy.

On the issue of constitutional law the opinion follows a long and unbroken tradition that if State legislation conflicts with obligations undertaken by the United States in a treaty, the legislation will not be applied by the courts. The terms of Article 6, paragraph 2, of the Constitution are unambiguous:

… all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Second Session of the International Law Commission
Authors: Eagleton Clyde
Published: April 2006

The International Law Commission held its second session in Geneva from June 5 to July 29, 1950. Two members were absent and the Soviet member, Professor Koretsky, withdrew when the Commission refused to exclude the member who was a national of China. The Chairman ruled, and was upheld by the Commission, that Mr. Koretsky’s proposal was out of order since the members of the Commission serve in a personal capacity and not as representatives of governments. Professor Georges Scelle was elected Chairman.

On the agenda were several topics, the treatment of which can only be briefly noted here. The General Assembly had asked the International Law Commision to formulate the principles of international law recognized in the Charter and in the judgment of the Nürnberg Tribunal. The Commission took the view that its task was not to express any appreciation of the Nürnberg principles as principles of international law, but merely to formulate them in accordance with instructions. Seven principles were stated and were referred back to the General Assembly.
Some Recent French Decisions on the Relationship Between Treaties and Municipal Law
Authors: Bial Louis C.
Published: April 2006

The relationship between treaties and municipal law has been widely discussed in this country in recent years. The discussion, however, has been limited to the problems raised by the proposed Constitutional amendments. Thus, the possibility of a conflict between the Constitution and a treaty, or between a treaty and State law, has been debated, while the possibility of a conflict between a treaty and a Federal statute has been hardly ever mentioned.
The Maintenance of Public Order at Sea and the Nationality of Ships
Authors: McDougal Mybes S. , Burke William T. , Vlasic Ivan A.
Published: April 2006

Most comprehensively viewed, the international law of the sea comprises two very different sets of principles. One set of principles, establishing certain basic, overriding community goals, prescribes for all states the widest possible access to, and the fullest enjoyment of, the shared use of the great common resource of the oceans. The other set of principles, commonly described as jurisdictional, expresses certain implementing policies designed economically to secure the basic community goals of shared use by establishing a shared competence among states in a domain largely free from the exclusive public order of any particular state.
Kansas V. Colorado Revisited
Authors: Scott Robert D.
Published: April 2006

Some time in 1907, Mr. Blihu Root, then Secretary of State, asked Mr. Chandler P. Anderson, his special counsel on Canadian matters, “how far, if at all, this Government is restrained by treaty provisions or by international law or by comity of nations from authorizing the diversion of waters from Birch Lake basin, as proposed by the Minnesota Canal and Power Company.”
Commercial Discrimination and International Law
Authors: Hazard John N.
Published: April 2006

The state traders of Eastern Europe are arguing that the principle of equality of states enshrined in the United Nations Charter must be extended to international commercial intercourse to prevent discrimination. This was the theme of the opening session of a recent conference of scholars gathered in Rome to consider the impact of state trading upon the law governing commercial relations of states.
The Foreign Claims Settlement Commission and Judicial Review
Authors: Coerper Milo G.
Published: April 2006

After World War II many Eastern European governments began programs of nationalization in which they took virtually all the private property of foreigners. Under the conditions prevailing it was quite obvious that American nationals would not be able to obtain compensation for the properties taken through local remedies. It thus became necessary for the Department of State to commence negotiations with these various governments with the object of obtaining some compensation for the properties so taken. Very little headway was made in such negotiations and the only practical device available was the economic counter-measure of blocking the assets of those foreign governments which were located in the United States. Such blocked assets could be appropriated (“vested”) where the property involved could be classified as “enemy” property. However, the blocking was purely a delaying tactic where the foreign government was not an “enemy” during World War II.
The Nature and Scope of the Armistice Agreement
Authors: Levie Howard S.
Published: April 2006

For many centuries the armistice agreement has been the method most frequently employed to bring about a cessation of hostilities in international conflict, particularly where the opposing belligerents have reached what might be termed a stalemate. This practice has not only continued but has probably increased, during the present century.
A Case Study in the Soviet use of International Law: Eastern Poland in 1939
Authors: Ginsburgs George
Published: April 2006

On September 17, 1939, Soviet troops crossed the Soviet-Polish frontier and, advancing rapidly, soon occupied the oft-disputed territory known at various times as Eastern Poland, Eastern Galicia, or Western Ukraine and Western Byelorussia.
Some International and Legal Aspects of the Suez Canal Question
Authors: Huang Thomas T. F.
Published: April 2006

The impact of the nationalization by the Egyptian Government on July 26, 1956, of the Suez Canal Company (Compagnie Universelle du Canal Maritime de Suez) upon international affairs is still reverberating. The questions of international law and other problems to which it gives rise are manifold, but this article will be restricted to an examination of four of them: first, the international and legal status of the Suez Canal Company; second, the nature and legal status of concession agreements which are referred to in the text of the Convention of October 29, 1888; third, the international status and control of the Suez Canal, particularly under the 1888 Convention; and fourth, the matter of compensation.
The United States-Rumanian Claims Settlement Agreement of March 30, 1960
Authors: Christenson Gordon A.
Published: April 2006

On March 30, 1960, the United States and Eumania settled by agreement certain claims of American nationals against Rumania. The agreement provides for the payment by Rumania of a lump sum in discharge of those claims.

In recent years the device of the en bloc or lump-sum settlement of international claims has to some extent replaced the use of the mixed claims commission. Lump-sum settlements between nations are not unique to the 20th century, however, and as early as 1802, the United States paid Great Britain a lump sum of £600,000 ($2,664,000) to settle certain debt claims. In the 19th century also, the United States obtained lump-sum settlements from Prance, Spain, Great Britain, Denmark, Peru, Belgium, Mexico, Brazil and China. Early in the present century mixed claims commissions were used in deciding claims between the United States and Great Britain, war damage claims against Germany, Austria and Hungary, claims between the United States and Mexico, and claims between Panama and the United States. When the work of the United States-Mexican General Claims Commission remained uncompleted after two successive conventions which extended the existence of the Commission, and when practical difficulties beset the United States-Mexican Special Claims Commission, an en-bloc settlement of all claims was the only solution. That settlement signaled disillusionment with mixed claims commissions. Thereafter, the major international claims settlements involving the United States were on a lump-sum basis. The very next settlement was one concluded on October 25, 1934, with Turkey. It provided for the payment of a lump sum of $1,300,000 to settle certain outstanding claims of American citizens against Turkey.
The Cuban Quarantine
Authors: Wright Quincy
Published: April 2006

Many problems of international law have arisen in connection with United States-Cuban relations since the establishment of the Castro regime in 1959, especially in regard to the following incidents:

1. Castro's confiscation of American property in Cuba in 1960, said to be in reprisal against the United States reduction of the Cuban sugar quota, was asserted by an American court to have been a breach of international law, and, following controversy over the number of persons in the U. S. Embassy in Havana, the United States broke diplomatic relations on January 3, 1962.
Is the Law of Responsibility of States for
Injuries to Aliens a Part of Universal
International Law?
Authors: Roy S. N. Guha
Published: April 2006

That a wrong done to an individual must be
redressed by the offender himself or by someone
else against whom the sanction of the community
may be directed is one of those timeless axioms of
justice without which social life is unthinkable.
The most primitive form of redress which insisted
on an eye for an eye and a tooth for a tooth was
not really reparation at all, but retaliation pure
and simple, treated as a substitute for
reparation. Measures of individual retaliation are
no longer permissible in municipal law and
impartial tribunals are entrusted with the duty of
determining the nature and the extent of the
reparation for a given wrong according to the law
of the land.

International law has tried to follow
parallel lines of development in this respect but
has failed to keep pace with municipal law,
largely because of its inherent difficulties.
Reprisals, which are no better than individual
retaliation, continued till even the other day to
be acknowledged as a legitimate mode of
reparation. The Covenant of the League of Nations,
while imposing restrictions on resort to war, left
uncertain the right of nations to make use of
force short of war, suggesting thereby that the
legality of reprisals might remain untouched. The
Charter of the United Nations forbids the use of
force except in certain contingencies and the
implication of the relevant provision may well be
that reprisals are still legal as long as they do
not involve the use of force.
The Commonwealth and Domestic Jurisdiction
Authors: Howell John M. , Wilson Robert R.
Published: April 2006

The United Nations Security Council in a resolution passed on August 9, 1960, reaffirmed that “the United Nations force in the Congo will not be a party to or in any way intervene in or be used to influence the outcome of any internal conflict. …” A Commonwealth state, Ceylon, was a cosponsor of this precedent-making resolution. A few weeks earlier the Government of Malaya had announced a boycott on South African goods in protest against South Africa’s racial policy, another dispute involving a domestic jurisdiction plea. Commonwealth members have been parties to approximately half of the disputes in League of Nations or United Nations history that are fairly classifiable as involving pleas of domestic jurisdiction. These recent actions of Ceylon and Malaya suggest that the newer members of the Commonwealth will be no less active in shaping the domestic jurisdiction concept than the older members have been.
Some Observations on the International Court of Justice
Authors: Gross Leo
Published: April 2006

The International Court of Justice, the principal judicial organ of the United Nations, unquestionably has made important contributions to the development of international law, though perhaps not on a scale that was optimistically assumed or, at any rate, hoped for at the time of its founding.
Contemporary Practice of the United States Relating to International Law
Authors: Lum Herman T. F.
Published: April 2006

The material for this section has been prepared by a committee consisting of Richard B. Bilder, Harold S. Burman, Stanley L. Cohen, Thomas T. F. Huang, Sylvia E. Nilsen, and Herbert K. Reis under the chairmanship of Ernest L. Kerley, all of the Office of the Legal Adviser, Department of State. Mr. Alfred P. Rubin of the Office of General Counsel, Department of Defense, has provided the committee with material originating in the Department of Defense.
The United States-Bulgarian Claims Agreement of 1963
Authors: Lillich Richard B.
Published: April 2006

After two and one-half years of negotiation, an agreement settling claims of the United States against Bulgaria was signed at Sofia on July 2, 1963. Under its terms Bulgaria will pay a lump sum of $3,543,398 in settlement of the claims of United States nationals arising out of war damage, nationalization of property and certain financial debts. Together with the Rumanian lump-sum settlement of 1960, which it closely parallels, the Bulgarian agreement constitutes a unique development in postwar international claims practice, for it follows rather than precedes a unilateral adjudication of the claims by the Foreign Claims Settlement Commission, a United States national claims commission acting pursuant to domestic claims legislation. Avoiding some of the problems of its predecessor, so ably considered in an article by a former Department of State attorney, the present agreement “merits analysis, not only for the benefit of private claimants involved, but also for a general understanding of technical, concrete experience in settling international disputes in a day when the chief talk revolves about grandiose schemes of the rule of law.”
Chinese Participation in the United Nations: The Legal Imperatives of a Negotiated Solution
Authors: McDougal Myres S. , Goodman Richard M.
Published: April 2006

For almost a decade and one-half the Chinese participation question has challenged the United Nations. In its coming session the General Assembly will doubtlessly once again grapple with the question, but past debates do not promise rational solution. In brief summary, two claimants seek, or are proffered by others, to participate as the “State of China” in the General Assembly, the Security Council, and the Specialized Agencies. The Government of the Republic of China (Nationalist China) has held the seat since the founding of the United Nations. The People’s Republic of China (Communist China), however, commands resources of considerable magnitude, and events of recent years have enhanced its claim to participation.
Civil and Political Rights: The International Measures of Implementation
Authors: Schwelb Egon
Published: April 2006

In his great blueprint, “An International Bill of the Rights of Man,” written in 1943, i.e. before the Dumbarton Oaks Conversations of 1944 and the San Francisco Conference of 1945, Professor Hersch Lauterpaeht (as he then was) suggested that the international machinery for securing the observance of the “International Bill of the Rights of Man,” which he then proposed, must be of two kinds—of supervision in its widest sense, and of enforcement. By “supervision in its widest sense” he meant “all activity calculated to ensure the observance of the Bill of Rights short of actual enforcement by political or physical means of compulsion.” He went on to say that this included

. . . the collection and publication of information, the receipt of petitions from private sources and representations from States, the communication with governments concerning such petitions and representations, the submission to the highest international political authority of periodical reports on the operation and observance of the Bill of Rights, and, finally, the transmission to that authority of cases of infraction of the Bill sufficiently serious to call for further investigation, for negotiation by the political authority, and, if necessary, for collective enforcement.
Constitutional Revision in the Specialized Agencies
Authors: Phillips Lester H.
Published: April 2006

The significant rôle for the specialized agencies contemplated by the Charter of the United Nations is reflected in the constitutions of those agencies. It is the purpose of this paper to analyze, on a comparative basis, one aspect of the constitutional law of intergovernmental agencies related to the United Nations, viz., the flexibility of their constitutions. This study should reveal the degree of adequacy of this ingredient, so essential to the viability of these important international institutions.
Some Aspects of International Jus Cogens as Formulated by the International Law Commission
Authors: Schwelb Egon
Published: April 2006

Article 50 of the Draft Articles on the Law of Treaties, which were presented by the International Law Commission to the General Assembly in 1966 and which the General Assembly has referred, as the basic proposal for consideration, to the international conference of plenipotentiaries, provides under the heading “Treaties conflicting with a peremptory norm of general international law (jus cogens)” that:

A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Natural Justice at the United Nations:the Rhodesia Case
Authors: Stephen Michael
Published: April 2006

It is provided by Article 1(1) of the United Nations Charter that the adjustment or settlement of disputes or situations which might lead to a breach of the peace is to be brought about in conformity with the principles
of justice and international law. There is much controversy about the precise meaning of this article, but its broad intention is clear; that if the United Nations is to command respect, without which its recommendations and decisions can never be effective, its organs must not act, or give occasion to be suspected of acting, in an unfair or arbitrary manner.
The Third United Nations Conference on the Law of the Sea: the 1976 New York Sessions
Authors: Oxman Bernard H.
Published: April 2006

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.
Coercion and Foreign Investment Rearrangements
Authors: Vagts Detlev F.
Published: April 2006

Expropriations in the later 1970’s often proceed more suavely than in the past. Straightforward seizure, to be sure, still has devotees. However, an increasingly favored approach is to induce the foreign investor to convey his property (or an interest therein) by an instrument that on its face represents an ordinary sale. That sale may be accompanied by a revision of the terms of some underlying contract between the investor and the government. The purpose of this article is to explore whether any body of rules now exists setting limits to the means that a government can use to obtain the investor’s consent. It then asks whether that law could be further developed so as to improve the quality of such negotiations and to cause them to produce more equitable results. Thereby it would indirectly improve the security and efficiency of the whole process of foreign direct investment.
International Protection of the Baltic Sea Environment Against Pollution: A Study in Marine Regionalism
Authors: Boczek Boleslaw A.
Published: April 2006

Protection of the physical environment of man is one of the most elemental and pressing problems of today’s world. In the past dozen years or so numerous dramatic and disastrous events have focused domestic and international attention on the growing danger of environmental deterioration and provided stimulus for national and international action to protect man against all kinds of pollution hazards. Among these environmental hazards marine pollution is perhaps the most dangerous in the long run. The sea, which covers about 70 percent of the planet, plays a vital role in maintaining the fundamental biological and ecological balance by supplying much of the oxygen on which life ultimately depends.
Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna Convention
Authors: Bolintineanu Alexandru
Published: April 2006

The questions which will be examined in this paper relate to the provisions of Articles 11 to 15, contained in Part II, Section I ( “Conclusion of Treaties” ) of the 1969 Vienna Convention on the Law of Treaties. These articles deal with “the means of expressing consent to be bound by a treaty” (as enumerated in Art. 11): signature (Art. 12), exchange of instruments constituting a treaty (Art. 13), ratification, acceptance, or approval (Art. 14) and accession (Art. 15).
A Formula for Tax-Sparing Credits in U.S. Tax Treaties with Developing Countries
Authors: Liebman Howard M.
Published: April 2006

On July 1, 1957, the United States and Pakistan signed a Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income. Although, at that time, it was one of the few double taxation treaties that the United States had entered into with a developing country, it followed, for the most part, the template established by earlier tax treaties negotiated with the more developed nations. A major distinguishing factor, however, was the inclusion of a tax-sparing credit provision, by means of which the coverage of the foreign tax credit accorded U.S. taxpayers for certain foreign taxes paid or deemed to have been paid was extended to certain taxes that were ordinarily levied by Pakistan but which had been “spared” as part of the latter’s incentive program for the stimulation of economic development. Three other treaties—with India, Israel, and the United Arab Republic—presented to the Senate for ratification at approximately the same time also contained tax-sparing provisions. However, none of these tax-sparing provisions was ever put into effect. The Convention with Pakistan was approved with a reservation excluding the sparing provisions, on the basis that the Pakistani tax concession which was to be credited for “phantom” taxes deemed paid had expired. The other three treaties never received the assent of the Senate and were subsequently withdrawn from the Senate Committee on Foreign Relations in 1964. No other tax-sparing provisions have been negotiated by the United States, although other tax incentive schemes have been presented to the Senate. These, too, have failed to be approved. The failure to agree to any such provision utilizing tax incentives as a form of development assistance is often deemed to be the major reason for the notable dearth of tax conventions between the United States and the developing states, as the latter are particularly interested in the inclusion of tax-sparing credit provisions in the double taxation treaties that they agree to sign. This failure is, in turn, rooted in the severe and at times persuasive criticism levied against the principle of granting tax-sparing credits—especially in the form in which they were to be granted in the four aforementioned treaties—and in the consequent hostility of the Senate Committee on Foreign Relations, as perceived by those responsible for negotiating U.S. tax treaties, toward provisions of this sort.
Independence Under International Law
Authors: Dumbauld Edward
Published: April 2006

In the first paragraph of the Declaration of Independence the nascent United States acknowledged “a decent Respect to the Opinions of Mankind.” This constituted, to a certain extent, an express acceptance of the binding force of international law, a corpus of rules based upon generally prevalent opinio juris.
The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session
Authors: Stevenson John R. , Oxman Bernard H.
Published: April 2006

Will there be a timely and successful conclusion to the Law of the Sea Conference? This is the basic question governments and interested members of the public are considering as they review the results of the organizational session of the Conference at UN Headquarters in New York from December 3 to December 15, 1973, and the first substantive session in Caracas from June 20 to August 29, 1974. During this review they face ever more pressing problems arising from the strategic, economic, scientific, and environmental use and importance of the oceans and ocean resources, intensified by growing concern with international trade and with supplies and prices of food and basic raw materials.
Contemporary Practice of the United States Relating to International Law
Authors: McDowell Eleanor C.
Published: April 2006

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the United States Department of State.
New Directions in US-USSR Copyright Relations
Authors: Maggs Peter B.
Published: April 2006

On February 27, 1973, the Union of Soviet Socialist Republics indicated its intention to accede to the Universal Copyright Convention (UCC). Soon thereafter, Soviet copyright legislation was substantially amended. Many of the consequences of Soviet accession to the UCC and of the new Soviet copyright legislation could be deduced immediately from the relevant provisions of Soviet and American law and the UCC itself. Nevertheless, many completely erroneous analyses of the legal significance of the Soviet action were published in the press of the United States and Western Europe. How the USSR would implement its copyright policy
The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session
Authors: Stevenson John R. , Oxman Bernard H.
Published: April 2006

The second substantive session of the Third United Nations Conference on the Law of the Sea was held at Geneva from March 26 to May 10, 1975. It was decided at the outset that this would be a negotiating session. There was no general debate. Few formal meetings were held. Even informal working groups of the whole tended to rely on smaller groups the work of which was necessarily removed from public view. Progress, in many respects substantial progress, was made toward producing generally acceptable texts in this way. However, the Conference did not complete the negotiation of a new Law of the Sea Convention or approved texts.
International treaties and their Application on the Territory of the USSR
Authors: Blishchenko Igor P.
Published: April 2006

In pursuing a consistent policy of peaceful coexistence of states with different social systems, proletarian internationalism, and strengthening relations with socialist and developing countries of Asia, Africa, and Latin America, the Soviet State concludes over 400 treaties and agreements a year.
The Concept of Autonomy in International Law
Authors: Hannum Hurst , Lillich Richard B.
Published: April 2006

“Autonomy” is not a term of art or a concept that has a generally accepted definition in international law. Indeed, one surveying either the literature on the subject or the examples brought forth to demonstrate the existence of the concept is apt to conclude, to paraphrase the late jurist John Chipman Gray, that “on no subject of international law has there been so much loose writing and nebulous speculation as on autonomy.” Yet the term is very much in vogue today. The Camp David framework, for instance, establishing the context for negotiating peace in the Middle East, seeks to provide “full autonomy to the inhabitants” of the West Bank and Gaza. Regional autonomy has been extended recently to the Basque country and Catalonia by Spain, and to the 34 atolls composing the Marshall Islands by the United States. Currently, demands for greater autonomy have been made by the Shetland Islands against Great Britain, as well as by Quebec against Canada. Greek officials have offered to create “a self-administered and inviolable” area within Greece as a permanent site for the Olympic Games. While conventional wisdom accords regional autonomous entities only limited status under international law, the increasing frequency of claims to autonomy and the incremental effect such claims will have upon the international legal order make the concept of autonomy ripe for review.
Contemporary Practice of the United States Relating to International Law
Authors: Nash Marian L.
Published: April 2006

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.
International Liability for Damage Caused by Space Objects
Authors: Christol Carl Q.
Published: April 2006

The exploration and use of the space environment, consisting of outer space per se, the moon, and celestial bodies, may result in harm to persons and to property. International law and municipal law have focused on rules allowing for the payment of money damages for harm caused by space objects and their component parts, including the “payload.” Both forms of law have accepted the basic proposition that money damages should compensate for harm. Principal attention will be given in this analysis to the kinds of harm caused by space objects that are considered to be compensable under international law at the present time.
Nonmilitary Areas in UN Practice
Authors: Bailey Sydney D.
Published: April 2006

There have been many occasions since the inception of the United Nations when it has been found useful to establish nonmilitary areas. A nonmilitary area is one from which all potential combatants, weapons, military equipment, and military installations are excluded and from which no hostile acts or activities in support of or related to the conduct of military operations may be undertaken. In addition to being of historical interest, demilitarization is again being implemented in Sinai and will almost certainly be resorted to in Namibia and other places in the future. Demilitarization thus gives rise to important questions: By whom may such zones be established? What purposes are they intended to serve? What are the implications for state sovereignty? Do such zones have any status for states not parties to the agreements establishing them or for the United Nations and its agencies? And how effective has the supervisory system been?
1986 UNAT Elections
Authors: T. M. F.
Published: April 2006

The United Nations Administrative Tribunal (UNAT) has elected Herbert Reis of the United States, a former Counselor at the U.S. Mission to the United Nations, as its Second Vice-President for the coming year. Mr. Reis has served on the tribunal for 5 years. Samar Sen of India and Arnold Kean of the United Kingdom were elected President and First Vice-President of the tribunal, respectively.
Treaty Interpretation by the Executive Branch: The Abm Treaty and “Star Wars” Testing and Development
Authors: Kennedy Kevin C.
Published: April 2006

In the latest interpretation of the 13-year-old Anti-Ballistic Missile Treaty (ABM Treaty)—one that stunned the arms control community—the Reagan administration announced on October 6, 1985, that the United States is authorized under the Treaty to develop and test advanced technology, spacebased weapons systems such as lasers and particle beam weapons. According to the administration, the ABM Treaty places no restrictions, short of actual deployment, on the Strategic Defense Initiative (SDI), the so-called Star Wars program. Although Secretary of State George Shultz has stated that the United States will continue to exercise restraint in the SDI program by limiting the development and testing of weapons according to a “restrictive” interpretation of the ABM Treaty, the question remains whether a legally sound basis exists for the administration’s “permissive” interpretation of the Treaty.
II
Authors: Schwebel Stephen M.
Published: April 2006

Not having been privileged to study, or work more than fleetingly, with Philip Jessup, I write from a less informed and intimate perspective than his colleagues and, of course, his son. Not that Jessup was a distant figure, for he conveyed to all who knew him, or even encountered him, a warmth and sympathy that was exceptional. No man in the world of international law aroused more universal admiration and affection than did Philip Jessup.
Can the President do no Wrong?
Authors: Glennon Michael J.
Published: April 2006

When the President does it, that means that it is not illegal.

Richard M. Nixon

Customary international law is part of federal common law. Federal common law is binding on every executive branch official, including the President. Congress can by statute create a different rule, however, because federal common law is interstitial; it fills in gaps between statutes and gives way when an inconsistent law is enacted. Consequently, with congressional authorization, the Chief Executive can disregard any norm of customary international law. But in the face of congressional silence, he is required to respect a clearly defined and widely accepted norm of customary international law. I consider this position, elaborated in a recent article in the North-western Univernty Law Review, to be most consistent with traditional separation-of-powers principles and also the soundest functional approach.
The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause
Authors: Scott Gary L. , Carr Craig L.
Published: April 2006

The refusal of the United States to consider itself bound by the recent decision in the Case Concerning Military and Paramilitary Activities in and against Nicaragua, coupled with the earlier termination of its adherence to Article 36(2) of the Statute of the International Court of Justice, has sparked a small storm of controversy and concern. Part of this concern involves how the United States, presumably a law-abiding and law-respecting nation, could possibly bring itself to snub the International Court of Justice and, by extension, the ideal of international law. Another part of this concern involves the likely consequences of the United States move on the vitality of the Court as the focal institution of a slowly evolving system of international law. A less obvious concern, but arguably one of paramount importance, calls into question the wisdom of insisting that the ICJ retain its optional compulsory jurisdiction. It is this less obvious concern that we propose to discuss here.
The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua
Authors: Reisman W. Michael
Published: April 2006

In the wake of the 1984 Judgment of the International Court on jurisdiction and admissibility issues in the Nicaragua case, the United States reviewed the utility and desirability of continued participation in the optional jurisdictional regime established by Article 36(2) of the Statute of the International Court of Justice. The Executive concluded essentially that the experiment initiated by the regime neither had succeeded nor was likely to succeed in the future; that its subscription was ragged and asymmetrical in terms of world politics; that the Court, the custodian of this mode of jurisdiction, had adopted new theories of interpretation that were inconsistent, in the U.S. view, with the thrust of the provision; that the Court itself had changed; and that, in sum, continued United States participation would discriminate against United States interests while contributing nothing to world order. Accordingly, on October 7, 1985, the Secretary of State informed the Secretary-General of the United Nations that the United States was terminating, in accord with the terms of its Declaration and the provisions of the Statute, its adherence to the optional regime under Article 36(2) of the ICJ Statute.
On a Hierarchy of International Human Rights
Authors: Meron Theodor
Published: April 2006

The quest for a hierarchy of international human rights continues unabated, despite the impressive challenge raised by Professor Weil to the notion of “relative normativity” of international legal norms. To illustrate: in Tel-Oren v. Libyan Arab Republic, a suit brought under the (First) Judiciary Act of 1789, Judge Harry T. Edwards discussed whether torture, as distinguished from terrorism, “is among the handful of crimes to which the law of nations attributes individual [civil] responsibility.”
Contemporary Practice of the United States Relating to International Law
Authors: Leich Marian Nash
Published: April 2006

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.
A. Ahlström Osakeyhtiö v. Commission of the European Communities
Authors: Puttler Adelheid
Published: April 2006

Canadian, Finnish and United States producers of wood pulp and two trade associations of such producers, one Finnish and one American, applied to the Court of Justice of the European Communities for annulment of a 1984 decision of the Commission of the European Communities. Under the 1984 decision, the Commission found the applicants to have infringed Article 85 of the EEC Treaty by engaging in concerted actions relating to the prices of wood pulp exports into the European Community (EC). The applicants, whose registered offices were all outside the Community, were ordered to terminate the pricing practices and to refrain in the future from measures having the same object or effect. The Commission fined all but two of the applicants for their past conduct. In this preliminary judgment, the Court held: (1) that the territorial scope of Article 85 of the EEC Treaty applies to the pricing practices of the applicants; (2) that by applying Article 85 to such practices, the EC had not infringed the public international law principles of territoriality and noninterference; (3) that the Commission’s decision is vacated insofar as it concerns the pricing actions of KEA, an association of U.S. wood pulp producers registered as an export cartel under the Webb-Pomerene Act; and (4) that the competition rules in the Free Trade Agreement between Finland and the Community do not preclude the application of the EEC Treaty.
The Forty-Second Session of the International Law Commission
Authors: McCaffrey Stephen C.
Published: April 2006

The International Law Commission of the United Nations held its forty-second session from May 1 to July 20, 1990, under the Chairmanship of Professor Shi Jiuyong. In the context of its work on the Draft Code of Crimes against the Peace and Security of Mankind, the Commission considered the establishment of an international criminal court and adopted three articles of the code. Also at the forty-second session, the Commission adopted six articles on the law of the non-navigational uses of international watercourses and discussed reports on state responsibility, relations between states and international organizations, international liability for injurious consequences arising out of acts not prohibited by international law and jurisdictional immunities of states and their property.
The Dorsey Comment: A Modest Retrogression
Authors: McDougal Myres S.
Published: April 2006

It seems to me, with all respect, that the Comment by Professor Dorsey exhibits a minimum understanding both of the contemporary world and of the theory and intellectual procedures recommended by Harold Lasswell and his associates for inquiry about the role of international law in that world. Certainly Professor Dorsey and Lasswell and associates observe very different worlds, have very different conceptions of international law, and recommend very different methods of inquiry. It is not clear that Professor Dorsey is constrained by empirical observation and modern scientific methods of inquiry.
France Concedes United States has Title to CSS Alabama
Authors: Roach J. Ashley
Published: April 2006

On October 30, 1984, French divers located the wreck of the CSS Alabama in 180 feet of water about seven miles off the Normandy coast of Cherbourg. A Confederate raider, the Alabama sank after a battle with the USS Kearsarge on June 19, 1864. French researchers dove to the wreck in November 1987.
Dispatch: A New Weekly Record of the U.S. State Department
Authors: Lutz Colleen A.
Published: April 2006

Dispatch, a new weekly record of the U.S. Department of State, compiles major foreign policy speeches and congressional testimony by senior U.S. officials, as well as treaty actions and ambassadorial appointments.

Every week, Dispatch publishes the most current information on U.S. foreign policy. In addition to speeches and congressional testimony, Dispatch carries policy summaries, fact sheets and feature articles, plus updates on events in the Middle East and on public and private sector assistance to Eastern and Central Europe.
Queensland Guidelines for Bodies Monitoring Respect for Human Rights During States of Emergency
Authors: Lillich Richard B.
Published: April 2006

After six years of study by its Committee on the Enforcement of Human Rights Law, the sixty-fourth Conference of the International Law Association, held in Queensland, Australia, from August 19 to 25, 1990, approved by consensus a set of standards to assist human rights bodies in monitoring states of emergency. These standards, designated the Queensland Guidelines for Bodies Monitoring Respect for Human Rights during States of Emergency, complement on the enforcement side the substantive norms found in the Paris Minimum Standards of Human Rights Norms in a State of Emergency, adopted by the ILA in 1984.
The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor
Authors: Burley Anne-Marie
Published: April 2006

The Alien Tort Statute, originally enacted as section 9 of the Judiciary Act of 1789, grants the district courts original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980 the United States Court of Appeals for the Second Circuit breathed new life into these little-used and somewhat mysterious provisions. The case was Filartiga v. Pena-Irala, in which a Paraguayan family brought suit against a former Paraguayan police chief for the torture and death of one of its members. The court upheld federal jurisdiction under the Alien Tort Statute. Finding state torture to be a violation of “modern international law,” it pronounced itself willing to enforce this law even as between aliens whenever personal jurisdiction could be obtained over the defendant.
Boundary Dispute Concerning the Taba Area
Authors: Ding Haihua , Koenig Eric S.
Published: April 2006

In 1986 Egypt and Israel agreed to submit for resolution by binding arbitration the boundary disputes involving the location of 14 demarcation pillars along their shared border on the Sinai Peninsula. A five-member tribunal (Tribunal), appointed and empowered under provisions of the 1979 Treaty of Peace Between Egypt and Israel (Treaty), and authorized by the Compromis to adopt only locations proposed by one of the state parties, held (4-1): that the Egyptian position is to be accepted on the most important dispute, the location of the southernmost pillar denoting “Ras Taba on the western shore of the Gulf of Aqaba”; and, with respect to the 13 remaining pillars in an uninhabited desert region, the position of Egypt is to be accepted in nine instances and that of Israel in four. Professor Lapidoth dissented from the decision as to the pillars in the Taba and Ras el Naqb areas.
The Constitution and Foreign Affairs: Two Hundred Years
Authors: Rogers William D.
Published: April 2006

Two centuries down the road of history, the constitutional ordering of “that vast external realm” remains very much a fuzzy experiment. The national experience has yielded few certain answers to the great question how the foreign relations power is allocated.
The Antarctic Minerals Negotiating Process
Authors: Joyner Christopher C.
Published: April 2006

Since 1982, a select group of states has been engaged in a series of
multilateral negotiations to fashion a regime governing the exploration and
exploitation of minerals in the Antarctic region. Because of the controversy in
the United Nations over whether Antarctica constitutes a portion of the “common
heritage of mankind,” these negotiations have attracted increasing publicity, but
their modus operandi has been left largely unexamined. The chief purpose of this
paper is to analyze the process by which this group of concerned states has
pursued national priorities within the decision-making framework and context of
the Antarctic minerals negotiations.
The Invasion of Panama Was a Lawful Response to Tyranny
Authors: D’amato Anthony
Published: April 2006

What Professors Tom Farer and Ved Nanda do not seem to understand is the positive implication for the development of human rights resulting from the United States intervention in Panama. Their views are so conditioned by a statist conception of international law that they seem unable to see through the abstraction that we call the “state” to the reality of human beings struggling to achieve basic freedoms. I am not talking about the human rights of American “matrons domiciled in Panama,” as Professor Farer puts it, who were “rescued” in 19th-century expeditionary-force style. Rather, I am talking about the human rights of Panamanian citizens to be free from oppression by a gang of ruling thugs. My focus is on the basic civil liberties and fundamental freedoms of the people of Panama themselves.
Zedan v. Kingdom of Saudi Arabia
Authors: Leigh Edward M.
Published: April 2006

Plaintiff Zedan, an American citizen, brought suit in the United States District Court for the District of Columbia against the Kingdom of Saudi Arabia for breach of a contract guaranteeing wages and profits. While performance under the contract occurred in Saudi Arabia, plaintiff alleged that the jurisdictional requirements under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1330, 1602-1611 (1982)) (FSIA) were satisfied by a recruitment call in California from a representative of the royal overseer of a private Saudi company. The district court granted the Saudi motion to dismiss. On appeal, the United States Court of Appeals for the District of Columbia Circuit (per Silberman, J.) unanimously affirmed and held: (1) that the telephone call did not have the requisite substantiality of contact with the United States; (2) that it was not sufficient to form the basis of a cause of action; and (3) that the alleged breach did not have sufficient direct effect in the United States to satisfy the exceptions to immunity under the FSIA.