bluuebunny/crossref_metadata_2025 huggingface dataset:
Legal Aspects of the United Nations Action in the Congo
Authors: Miller E. M.
Published: April 2006

The United Nations action in the Congo, instituted by the Security Council on July 14, 1960, has been described by the Secretary General as “the biggest single effort under United Nations colours organized and directed by the United Nations itself.” It was an emergency action, undertaken almost instantaneously and carried out in an atmosphere of crisis and political tension. This was not a setting propitious to juridical deliberation; yet it cannot be said that legal considerations were disregarded. At the very outset, the Secretary General drew attention to the basic considerations of law and principle that should govern United Nations operations. As the situation in the Congo grew more complicated and divergent views emerged as to the propriety of the United Nations action, Member Governments as well as the Secretary General sought guidance and support in the prescriptions of the Charter and the rules of law that have evolved through United Nations practice. Faced with the responsibility of interpreting a general mandate of the Security Council in circumstances that had not been envisaged, the Secretary General considered it essential to refer to legal precepts whenever they could furnish guidance; only in this way could he maintain the requisite impartiality and yet take action under his mandate that might be opposed by one or the other contending side. Thus, in regard to each of the several controversial issues that arose, the Secretary General presented the legal basis for his actions, not merely in terms of the broad principles of the Charter, but more specifically, when necessary, in terms of the applicable rules and precepts adopted by United Nations organs, whether expressly in their resolutions or impliedly in their practice. The function of law in United Nations diplomacy has rarely been more clearly demonstrated.
The Goa Incident
Authors: Wright Quincy
Published: April 2006

The military take-over of Goa by India on December 18, 1961, was of legal importance, not only because it raised serious issues concerning the application of United Nations law, but also because it indicated a major difference between the East and the West in the interpretation of that law.
Safeguarding Atoms for Peace
Authors: Willrich Mason
Published: April 2006

Since 1945 the number of nations possessing nuclear weapons has increased five times and stockpiles of nuclear weapons have increased thousands of times. The enormity of the build-up of capabilities for nuclear destruction has largely overshadowed the remarkable progress that has been made since 1945 in developing the peaceful applications of nuclear science. The take-off point for the economic use of nuclear fuels for generating electricity appears to have now been reached.
Jus Dispositivum and Jus Cogens in International Law
Authors: Veedross Alfred
Published: April 2006

Nearly three decades ago I published in this JOURNAL an article in which I tried to prove that even in international law there exist rules having the character of jus cogens; i.e., norms with which treaties must not conflict. Since my eminent colleague in the International Law Commission, Ambassador Tabibi, mentioned in a meeting of this Commission that the view expressed in my article “foreshadowed the solution” embodied in Article 37 of the Commission’s draft Convention on the Law of Treaties concerning the problem of jus cogens in international law, I feel obliged to defend this draft against the criticism directed against it by the eminent English lawyer, Professor Georg Schwarzenberger.
New Approaches to the Study of International Law
Authors: Falk Richard A.
Published: April 2006

International law is both a contemplative academic subject and an active ingredient of diplomatic process in world affairs. The failure to maintain the clarity of this distinction accounts for considerable confusion about the nature and function of international law in the world today. An international lawyer is also a citizen of a nation-state who often holds strong views as to preferred courses of foreign policy. One way for him to vindicate these views is to demonstrate their compatibility or incompatibility with governing rules of international law. Confusion arises in scholarly settings whenever the adversary presentation of views is not distinguished from the scholarly assessment of opposing lines of adversary presentation.
A New Look at the Jurisdiction in ALCOA
Authors: Raymond John M.
Published: April 2006

One of the best-known antitrust decisions in the last quarter of a century is United States v. Aluminum Company of America et al., now usually referred to as the ALCOA case. Although the Sherman Act had for some time been given an extraterritorial application when American corporations were involved, the novelty of ALCOA was that the decision, written by that eminent jurist, Judge Learned Hand, for the first time interpreted our antitrust laws as rendering illegal contracts of a foreign corporation which were made abroad with other foreign corporations and which related to business carried on and to acts to be performed abroad. No American party was involved, and no act took place in the United States, in the part of the case that is here to be considered. Jurisdiction was claimed merely on the basis of an adverse “effect” on our foreign and domestic commerce.
The Practice of Voluntary Abstentions by Permanent Members of the Security Council Under Article 27, Paragraph 3, of the Charter of the United Nations
Authors: Stavropoulos Constantin A.
Published: April 2006

A question which was much discussed in legal literature in the early years of the United Nations, and which has been cited as a classic example of the effect of subsequent practice upon a provision in a multilateral treaty, has recently been raised again. This concerns the interpretation of Article 27, paragraph 3, of the Charter of the United Nations, which deals with voting in the Security Council on non-procedural matters. Both Portugal and South Africa last year reserved the position of their governments regarding the validity of Security Council Eesolution 221 of April 9, 1966, in the vote on which both France and the Soviet Union abstained. This is the resolution by which the Council, acting under Chapter VII of the Charter, called for certain measures to enforce an embargo on oil and petroleum products from reaching Southern Ehodesia through the port of Beira in Mozambique, and authorized the United Kingdom to prevent by the use of force, if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Rhodesia.
Confronting Total War: A “Global” Humanitarian Policy
Authors: Freymond Jacques
Published: April 2006

All humanitarian action takes place in a political context, and has, therefore, a political content. This means that all “humanitarian” organizations, such as those operating under the sig of the Red Cross, have a duty to define a humanitarian policy which will be valid in the long term, based on a thorough analysis of the political context, the main characteristics of an epoch, the political societies of our time, and the world political system. Such a humanitarian policy entails in turn the development of a humanitarian strategy which is distinct from the tactical moves imposed by varying crises. Neglect of this work of reflection leads to contradiction and confusion and, worse still, the degradation of humanitarian action to the level of a political instrument.
The Admission of Judges Ad Hoc In Advisory Proceedings: Some Reflections in the Light of the Namibia Case
Authors: Pomerance Michla
Published: April 2006

In the Namibia case, the International Court of Justice for the first time in its history received an application for the appointment of a judge ad hoc in advisory proceedings. The application was made by South Africa on the basis of Article 83 of the Rules of Court which provides for the possibility of seating judges ad hoc in advisory procedings involving “a legal question actually pending between two or more States.” No state or international organization entitled to appear before the Court opposed the South African request, and no state other than South Africa submitted an application for a judge ad hoc. After an oral hearing (held in camera over strong South African protests 8) in which only South Africa presented argument, the Court, in its Order of January 29, 1971, decided, by a vote of 10 to 5, to reject South Africa's application. The Court offered no explanation for its decision at the time. Of the five dissenting judges, only Judges Onyeama and Dillard appended to the Order the reasons for their dissent. The remaining dissenting judges (and, by implication, the Court itself) feared that early disclosure of the reasons for their stands entailed the risk of prejudging substantive questions in the case. (As will be seen below, Judges Onyeama and Dillard had no cause to entertain similar fears.) With the delivery of the opinion, however, all five dissenting judges voiced strong criticism of the Court's refusal to admit a South African judge ad hoc.
The Composition of the Trusteeship Council
Authors: Blum Yehuda Z.
Published: April 2006

The termination on January 31, 1968, of the Trusteeship Agreement on Nauru has given rise to a complex situation with regard to Article 86(1) of the United Nations Charter which lays down the rules governing the composition of the Trusteeship Council.
Incorporation of the Law of Nations During the American Revolution—The Case of the San Antonio
Authors: Bourguignon Henry J.
Published: April 2006

In an article published in this Journal in 1932, Professor Edwin Dickinson pointed out that the Supreme Court, in the first thirty years of its existence, dealt with 82 cases which raised questions of international law. The Court and counsel before it repeatedly cited the familiar writers on the law of nations: Grotius, Pufendorf, Bynkershoek, Burlamaqui, Rutherforth, and Vattel. As Dickinson pointed out, “It is an ancient doctrine of the Anglo-American common law that the law of nations is incorporated in and in some sense forms part of the national law.” Largely through decisions based on the principles expressed by the classical writers, the law of nations was early incorporated as part of the law of the United States.
Contemporary Practice of the United States Relating to International Law
Authors: Boyd John A.
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.
Accelerating Advisory Opinions: Critique And Proposal
Authors: Reisman Michael
Published: April 2006

Time is a fundamental component of all social organization. Any component may be manipulated to achieve preferred outcomes, but time is particularly malleable. The concept of linear time, which allows complex sequential and conditional planning and deferred allocation of resources, is a critical part of Western political theory, for it facilitatesthe extension of present control far into the future. A peculiar genius of the law has been the elaboration of this linearism and the manipulation and supervision of different phases of future activity. Manipulation of time ia mundane legal activities has a utility per se in that it permits order and eflBciency in the complex, adversarial, but necessarily collaborative operations of groups and individuals. It is also a prerequisite to the realization of many other procedural privileges; without “enough” time, the privileges may be meaningless and even tavinting.
Recent Developments in the Law of Sovereign Immunity in the United Kingdom
Authors: Higgins Rosalyn
Published: April 2006

The last eighteen months have witnessed very significant changes in the interpretation and application of the doctrine of sovereign immunity by the English Courts. These changes are important not only as matters of historical and practical interest, but because they address many of the fundamental policy questions in a manner that has been unnecessary in U.S. practice because of the way in which the Tate Letter has channelled the development of the law along certain set patterns.
Litigation of Sovereign Immunity before a State Administrative Body and the Department of State: the Japanese Uranium Tax Case
Authors: Brower Charles N.
Published: April 2006

When President Nixon and Prime Minister Tanaka of Japan, held a summit meeting in Hawaii on August 31-September 1, 1972, doubtless no one expected they were laying the foundation for one of the most curious sovereign immunity cases in the annals of American jurisprudence. The resulting communique, however, which placed the leaders' seal of approval on extensive Japanese purchase commitments in the United States, became the basis for a Japanese claim that half a billion dollars worth of enriched uranium subsequently purchased by ten Japanese utilities from the Atomic Energy Commission (AEC) and stored on its reservation in Oak Ridge, Tennessee enjoyed sovereign immunity from local commercial property taxes. The Japanese claim, apart from posing a diplomatic issue between Japan and the United States, embroiled the Department of State and the AEC (and its successor, the Energy Research and Development Administration (ERDA)) with each other and with the Department of Justice, threatened controversy between Tennessee and Washington, and eventually resulted in the Japanese utilities’ settling the matter for $4.5 million. Although the settlement deprived posterity of a decision on the issue, this unique case remains not simply an entertaining episode but also a useful lesson in defense against claims of sovereign immunity. While the Foreign Sovereign Immunities Act of 1976 was intended substantially to eliminate the role of the Department of State in sovereign immunity disputes, the Act could not have been successfully invoked in this case, even had it been in effect, as related below.
The Marcona Settlement: New Forms of Negotiation and Compensation for Nationalized Property
Authors: Gantz David A.
Published: April 2006

On September 22, 1976, the United States and the Government of Peru signed an agreement resolving the nationalization of the Marcona Mining Company’s Peruvian branch. The settlement, the intergovernmental negotiations leading up to it, and the expropriation itself are of more than passing interest. The settlement has been characterized by the U.S. Government as providing, when fully implemented, prompt, adequate, and effective compensation through a package—a combination of cash and long term sales relationship—which represents a relatively beneficial arrangement economically and politically for the Government of Peru. These arrangements were the more remarkable for having been concluded with a leading Third World country that has a long history of nationalization of foreign investment. In light of the frequency of expropriations of American-owned property abroad, and of the fact that in one or more ways such expropriations involve issues of the public interest as well as those of private U.S. companies, the Marcona settlement has implications for the handling of other investment disputes.
The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights
Authors: S. McDougal Myres , D. Lasswell Harold , Chen Lung-chu
Published: April 2006

The deprivations with which we are here concerned are those imposed upon individuals on the ground that they do not possess the “nationality” of the imposing state. By nationality we refer to the “characterizations” states make of individuals for the purpose of controlling and protecting them for the many comprehensive concerns of states. Since the larger transnational community honors states in the conferment and withdrawal of “nationality” upon many different grounds—including place of birth, blood relation, subjective identification of individuals, and various activities—these characterizations may bear little relation to the actual facts of particular community membership and, hence, to reasonable differentiations in terms of common interest in the larger community of mankind. It is our thesis that most deprivations imposed through these characterizations are made unlawful, not merely by the historic law of the responsibility of states, but also by a newly emerged general norm of nondiscrimination which seeks to forbid all generic differentiations among people in access to value shaping and sharing for reasons irrelevant to individual capabilities and contribution.
The Illegality of the Arab Attack on Israel of October 6, 1973
Authors: Rostow Eugene V.
Published: April 2006

In part II of his article, Destination Embargo of Arab Oil: Its Legality under International Law, Mr. Ibrahim F. I. Shihata defends the legality of the armed attack on Israel launched by many Arab states, with Soviet assistance, on October 6, 1973. “Egypt and Syria,” he writes, “as the states vested with sovereignty, but illegally deprived of actual control, over territories occupied by Israel were … entitled to seek redress for the protection of their territorial integrity. Under the UN system they were probably under the obligation to resort first to peaceful methods. This they have done in vain for more than six years. Egypt, in particular, expressed officially its readiness to enter into a peace agreement with Israel containing all the obligations provided for in Security Council Resolution 242 (1967) as broadly elaborated by the Special Representative of the UN Secretary-General, Ambassador Jarring. In response, Israel defiantly insisted on territorial expansion.” Under these circumstances, he argues, both Egypt and Syria (which had never accepted any version of Security Council Resolution 242 or given any assurances to Ambassador Jarring) had an inherent right of self-help under customary international law, or of self-defense under “a broad reading” of Article 51 of the Charter, in what he asserts was no more than an attempt to recover those territories by force.
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 Department of State.
African Imperialism
Authors: Reisman W. Michael
Published: April 2006

Some international cases are hard. The facts are controverted, the norms uncertain, hence determining the lawfulness of unilateral actions is difficult. In the Western Sahara case, facts and law are clear and condemnation of unlawful action must not be evaded.
The Twenty-Fifth Session of the International Law Commission
Authors: Kearney Richard D.
Published: April 2006

At its Twenty-Fifth Session the International Law Commission determined to allot some of its limited time to each of the active subjects on its agenda. The decision was the child of necessity. The Draft Articles on the Representation of States in Their Relations with International Organizations had taken up most of the Commissions sessions in 1969, 1970, and 1971, and the Twenty-Fourth Session in 1972 had, under forced draft, produced the draft articles on the Succession of States to Treaties and on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons. The inevitable byproduct was a mounting pressure, both within the Commission and from the General Assembly, for intensive examination of the draft articles and commentaries on State Responsibility, Succession of States in Matters Other Than Treaties, the Most-Favored-Nation Clause, and the Report on Treaties Concluded Between States and International Organizations.
The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms
Authors: Lillich Richard B. , White G. Edward
Published: April 2006

The deliberative process by which the International Court of Justice (ICJ) reaches its decisions, although a matter of public record,1 is largely ignored today even by specialists.2 Several reasons account for this situation: the limited availability and somewhat opaque nature of the Court’s published procedures;3 the lack of practical interest in this aspect of the Court’s task;4 the reluctance of judges in the past to discuss, at least in print, any aspect of the Court’s decisionmaking process;5 and the impression held in some quarters that this process is something of a mystery.6 Consequently, few students of the Court have more than a hazy impression of how it makes its decisions.7
NATO Consultations as a Component of National Decisionmaking
Authors: Kirgis Frederic L.
Published: April 2006

In domestic legal systems procedures exist for taking account of the interests of others when unilateral decisions affecting them are made. These procedures take such forms as the granting of injunctive relief and the requirement for impact statements. International law lacks comparable mechanisms. If governments consider the effects of their proposed decisions on other countries, they generally do so as a result of relatively unstructured intergovernmental consultations. The utility of such consultations has been recognized by decisionmakers of high rank, and a few studies of consultative practices in specialized fields have recently appeared. The present study examines the practice of prior consultation in a setting in which one might expect it to thrive, if it ever does: that of a political-military alliance among states with widely shared values and with a common (though not necessarily uniform) apprehension about a possible external threat to those values.
The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)
Authors: Oxman Bernard H.
Published: April 2006

The ninth session of the Third United Nations Conference on the Law of the Sea met in New York from February 27 to April 4, and in Geneva from July 28 to August 29, 1980. In addition, the Drafting Committee met for 3 weeks in June in New York.
Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests Act, 1980
Authors: Lowe A. V.
Published: April 2006

The Protection of Trading Interests Act, passed by the United Kingdom Parliament on March 20, 1980, is one of the most remarkable pieces of legislation to emerge in recent years from that body. It effects a significant shift in British policy relating to the control of international restrictive practices, and is of considerable interest to international lawyers. The aim of the Government in introducing the measure was, in the words of the Secretary of State for Trade, “to reassert and reinforce the defences of the United Kingdom against attempts by other countries to enforce their economic and commercial policies unilaterally on us.” This aim is secured, in general terms, by a combination of three measures. Firstly, an extension of the power of the British Government to forbid compliance by British citizens and businesses with orders of foreign authorities, where those orders have extraterritorial effect and prejudice British trading interests. Secondly, a prohibition on the enforcement by United Kingdom courts of foreign judgments involving the award of multiple damages and of certain other judgments touching upon the control of restrictive practices. Thirdly, the establishment of a right for British citizens or businesses against whom foreign courts have awarded multiple damages to recover the noncompensatory element from the original plaintiff by an action in a United Kingdom court.
Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law
Authors: Maier Harold G.
Published: April 2006

Historically, public international law and private international law have been treated as two different legal systems that function more or less independently. Public international law regulates activity among human beings operating in groups called, nation-states, while private international law regulates the activities of smaller subgroups or of individuals as they interact with each other. Since the public international legal system coordinates the interaction of collective human interests through decentralized mechanisms and private international law coordinates the interaction of individual or subgroup interests primarily through centralized mechanisms, these coordinating functions are usually carried out in different forums, each appropriate to the task. The differences between the processes by which sanctions for violation of community norms are applied in the two systems and the differences in the nature of the units making up the communities that establish those norms tend to obscure the fact that both the public and the private international systems coordinate human behavior, and that thus the values that inform both systems must necessarily be the same.
The Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of Treaties and States Not Party to the Convention
Authors: Vierdag E. W.
Published: April 2006

The Vienna Convention on the Law of Treaties (the Convention), concluded on May 23, 1969, entered into force on January 27, 1980. It thus took more than 10 years for 35 states to ratify the instrument or to accede to it. Although its entry into force may hasten ratification and accession somewhat in other states, it will probably be a very long time before a large majority of states are parties to the Convention. Therefore, international treaty practice will long be faced with the conclusion of treaties between or among states that are parties to the Convention and other states.
Protection of Diplomats Under Islamic Law
Authors: Bassiouni M. Cherif
Published: April 2006

The International Court of Justice has examined the seizure and detention of United States diplomats and members of their staff by a group of militant “students” in Tehran from the point of view of international law. But it is also of interest to inquire into the legal status of these acts under Islamic law, which the Islamic Republic of Iran adopted with its Constitution of 1979, and under Islamic international law, which is used here to mean that aspect of the Shari’a and its practice by Islamic countries toward other countries.
Mexico’s Guidelines for Foreign Investment: The Selective Promotion of Necessary Industries
Authors: Maviglia Sandra F.
Published: April 2006

In February of 1984, the National Foreign Investment Commission of Mexico surprised the investment community by announcing that it would apply the Foreign Investment Law of 1973 (FIL) with flexibility and would consider permitting foreign capital investment of up to 100 percent in a significant number of activities. Actually, Mexico had been expected to increase its restriction of foreign investment in view of the Government’s efforts to decrease its economic dependence upon other countries.
The United Nations Legislates to Limit its Liability
Authors: Szasz Paul C.
Published: April 2006

By now everyone in the United States, certainly every lawyer, must be conscious of the tort liability crisis and the consequent liability insurance crisis. Private individuals, businesses, not-for-profit enterprises and even governmental units, from school boards to the federal Government, are finding that the damages they have to pay or their insurance costs are skyrocketing, sometimes catastrophically or even cripplingly; as a result, worthwhile events must be canceled and valuable facilities are idled. Although it may be thought that these mundane concerns cannot affect an international organization—even one, like the United Nations, based in the United States—that surely it can shelter itself with its immunity, this unfortunately is not so. Although the United Nations, like other intergovernmental organizations, does enjoy full jurisdictional immunity, based generally upon its Charter but more specifically on international treaties and even national legislation, there is somewhat less to this protection than meets the uninformed eye. Since their member states expect the organizations they establish to be good international citizens, they have prohibited them from hiding behind their functional immunity for the purpose of evading either contractor tort-related responsibilities. Indeed, they may only use their immunity in order to avoid litigation in a national court or some other inappropriate forum; but if they cannot resolve a dispute, for example with a tort claimant, they must offer some other suitable means of settling the matter, such as by arbitration.
International Law and U.S. Withholding of Payments to International Organizations
Authors: Nelson Richard W.
Published: April 2006

On March 12, 1986, Ambassador Vernon A. Walters, the United States representative at the United Nations, said:

[T]he prospect is for the withholding by the United States of a very sizable amount. … This inevitably would raise the question of whether the non-payment of a substantial amount could constitute a material breach of the United States obligation under Article 17 of the U.N. Charter to pay our duly assessed share of the U.N. budget. This is an issue of which we must be aware.
The Extraterritorial Application of the German Antitrust Laws
Authors: Gerber David J.
Published: April 2006

The extraterritorial reach of national economic regulation, particularly of antitrust laws, is one of the most controversial topics in the international legal community, largely because that community has failed to develop jurisdictional principles that both accommodate the regulatory needs of regulating states and are discriminating enough to avoid impinging on the legitimate interests of other states. As a result, international conflicts related to the assertion of jurisdiction have greatly increased in both frequency and intensity.
Judge Bork’s Concept of the Law of Nations is Seriously Mistaken
Authors: D’Amato Anthony
Published: April 2006

A recent decision of the Court of Appeals for the District of Columbia Circuit, Tel-Oren v. Libyan Arab Republic, is sparking considerable controversy and will undoubtedly be examined at length in law journals. The events in issue occurred March 8, 1978, when 13 heavily armed members of the Palestine Liberation Organization left Lebanon for Israel under instructions to seize and hold Israeli civilians in ransom for the release of PLO members incarcerated in Israel. On the main highway between Haifa and Tel Aviv, they stopped and seized a civilian bus, a taxi, a passing car, and later a second civilian bus, taking the passengers hostage. While proceeding toward Tel Aviv with their hostages gathered in the first bus, the terrorists fired on and killed numerous occupants of passing cars as well as some of their own passengers. They also tortured some of their hostages. At a shoot-out with the police at a police barricade, the terrorists shot more of their hostages and then blew up the bus with grenades. As a result of the terrorists’ actions, 22 adults and 12 children were killed, and 63 adults and 14 children were seriously wounded.
Japan—Trade in Semi-Conductors
Authors: Porges Amelia
Published: April 2006

In this dispute settlement action in the General Agreement on Tariffs and Trade (GATT), the complainant European Communities (EC) challenged the 1986 Japan-U.S. Arrangement on Semiconductor Trade (Arrangement). The panel of three experts found that (1) export regulations that prevent or quantitatively restrict exports below a minimum price level are inconsistent with GATT Article XI; (2) a complex of Japanese government measures including non-legally binding administrative guidance to prevent semiconductor exports below cost were such export restrictions and, hence, inconsistent with GATT Article XI; (3) the GATT’s provisions on dumping in Article VI neither justify nor forbid such restraints by exporting countries; and (4) the evidence did not show that Japanese actions to improve market access for foreign semiconductors had discriminated in favor of U.S. products.
Sperry Corp. v. United States
Authors: Chan Rose Cecile
Published: April 2006

Plaintiffs, Sperry Corp. and Sperry World Trade Inc. (Sperry), received an award from the Iran-United States Claims Tribunal (Tribunal). Upon payment of the award, the United States deducted 2 percent of the total amount pursuant to a directive license issued by the Secretary of the Treasury regarding recovered claims by U.S. nationals against Iran. When plaintiffs challenged the authority of the Treasury to make the deduction and the United States Claims Court announced a preliminary ruling that concurred with plaintiffs’ position, the Executive persuaded Congress to approve legislation authorizing specified percentages to be deducted by the United States from Tribunal awards to U.S. citizens. Responding to the plaintiffs’ challenge to the constitutionality of the newly enacted statute, the United States Claims Court dismissed the suit and, on appeal, the United States Court of Appeals for the Federal Circuit (per Meyer, J.) reversed and held: that the deduction constitutes a taking without compensation in violation of the Fifth Amendment to the United States Constitution. In September 1988, the United States filed notice of appeal with the Supreme Court.
Lee v. Dong-A Ilbo
Authors: Winner Sonya D.
Published: April 2006

In 1985 two intelligence agencies of the South Korean Government announced that they had successfully disrupted a North Korean spy ring operating in the United States. Their press release, which was widely publicized in the Korean press, named Chang-Sin Lee as a North Korean agent associated with a spy ring at Western Illinois University, where Lee had been a student. The story was picked up and reported in the United States by six Korean-American newspapers and a public television station. When Lee sued for libel, the defendants relied upon the official report privilege, which gives absolute protection to the accurate republication of official government reports. The district court, holding that the privilege applied and that Lee had not overcome it by showing malice, dismissed the case. Plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, which in a two to one decision reversed (per Ervin, J.) and held: that the official report privilege does not apply to the republication of official reports of foreign governments. Judge Kaufman, sitting by designation, dissented from the majority’s reversal of the district court’s grant of summary judgment.
The Settlement of Disputes Under the 1988 Canada-United States Free Trade Agreement
Authors: Castel J.-G.
Published: April 2006

On January 2, 1988, the President of the United States and the Prime Minister of Canada signed the Canada-United States Free Trade Agreement (FTA). It was implemented by appropriate legislation in both countries and came into force on January 1, 1989. This Agreement is the most comprehensive of a series of projects and treaties on free trade between Canada and the United States over the last 135 years.
Wilsonianism Redux: Inadvertent Publication of Secret Protocol, Hungarian-East German Agreement on Visa Requirements
Authors: T. M. F.
Published: April 2006

This treaty between the (East) German Democratic Republic and Hungary concerning visa requirements was deposited with the United Nations in accordance with Article 102 of the UN Charter. When the Government of Hungary decided to permit East Germans visiting Hungary to emigrate to the Federal Republic of Germany (West), the authorities in Budapest informed the East German authorities that the treaty had become inoperative. Among the reasons cited was its inconsistency with the Convention Relating to the Status of Refugees, to which Hungary had acceded on March 14, 1989.
The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women
Authors: Clark Belinda
Published: April 2006

The law governing the admission of reservations to treaties has evolved over the past sixty years, as is demonstrated by the Vienna Convention on the Law of Treaties, which incorporates a regime on reservations that represents a significant change in the law as it was generally understood in the first part of this century. Whereas it was once widely considered that the unanimous consent of the other parties to a treaty was required to admit a reservation, the Vienna Convention implemented a new system in which this condition is generally not necessary. The regime on reservations is contained in section 2 of the Convention (Articles 19-23), which, together with the definitional article (Article 2(1)(d)), determines what constitutes a reservation, the criteria it must meet to be permissible, and the effect it will have, both in the event that it is accepted by other contracting states and in the more problematic event that it is not.
Doherty v. U.S. Department of Justice
Authors: Speer John K.
Published: April 2006

This case is the latest in a series of actions brought in the United States since 1984 that have resulted in court and administrative decisions on the claim of asylum by, and attempt at extradition of, the plaintiff, Joseph Patrick Doherty, a native of Northern Ireland and subject of the United Kingdom and its Colonies. He was admittedly a member of the Provisional Irish Republican Army and was convicted in absentia, in Northern Ireland, of murder of a British Army officer there in 1980. In the instant case, the plaintiff sought review by the United States Court of Appeals for the Second Circuit of two administrative decisions by successive Attorneys General of the United States (one by Edwin Meese in June 1988, and the other by Richard Thornburgh in July 1989).
Poland Accepts the Optional Clause of the ICJ Statute
Authors: Szafarz Renata
Published: April 2006

On September 25, 1990, Poland deposited a declaration with the Secretary-General of the United Nations accepting the compulsory jurisdiction of the International Court of Justice in accordance with Article 36, paragraph 2 of the Statute of the Court. It is the first country from Central or Eastern Europe to have done so and the fifty-second state now maintaining an effective declaration.
Until What? Enforcement Action or Collective Self-Defense?
Authors: Rostow Eugene V.
Published: April 2006

Should the Persian Gulf war of 1990-1991 be characterized as an “international enforcement action” of the United Nations Security Council or as a campaign of collective self-defense approved, encouraged, and blessed by the Security Council?

This is not simply a nice and rather metaphysical legal issue, but an extremely practical one. The question it presents is whether the control and direction of hostilities in the gulf, their termination, and the substance of the settlement they produce were handled by the Council as the Korean War was handled, that is, as a campaign of collective self-defense, or as the United Nations’ first “international enforcement action.” According to some international lawyers, characterizing the gulf war as a Security Council “enforcement action” under the untried procedures of Articles 42-50 of the Charter would in effect eviscerate Article 51, make the exercise of each state’s “inherent” right of self-defense subject to the permission of the Security Council, threaten the veto power of the permanent members of the Security Council, and thus lead to extremely grave and perhaps insoluble political difficulty. It could even destroy the United Nations.
“Land Reform” Decision
Authors: Stewart Charles E.
Published: April 2006

In a consolidated constitutional proceeding, fourteen claimants, all citizens of the Federal Republic of Germany (FRG), attacked the constitutionality of that clause of the German Unification Agreement providing that property expropriated during the Soviet occupation of eastern Germany during the period 1945-1949 was not to be returned to the original owners and that the owners could only be compensated in money. The Court confirmed the constitutionality of the provision and thus took a first step toward clarifying one of the greatest obstacles to significant investment in the former German Democratic Republic (GDR): unclear property ownership, making it impossible to say with certainty who ultimately owned much of the property in the former GDR.
Argentine Republic v. Amerada Hess Shipping Corp.
Authors: Vázquez Carlos M.
Published: April 2006

Plaintiffs and respondents, Amerada Hess Shipping Corp. and United Carriers, Inc., were respectively the charterer and owner of the Hercules, a crude oil tanker that was bombed in international waters by Argentine military aircraft during the war over the Malvinas or Falkland Islands. The ship was severely damaged and had to be scuttled off the coast of Brazil. After unsuccessfully seeking relief in Argentina, the companies filed suit against defendant and appellant, the Argentine Republic, in the Southern District of New York. Plaintiffs argued that the federal courts had jurisdiction under the Alien Tort Statute (28 U.S.C. §1350 (1982)), which confers federal 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.” The district court dismissed the suit for lack of subject matter jurisdiction, holding that the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1330, 1602-1611 (1982)) (FSIA) is by its terms the sole basis of federal jurisdiction over cases against foreign states. A divided panel of the U.S. Court of Appeals for the Second Circuit reversed. The Supreme Court (per Rehnquist, C.J.) unanimously reversed the Second Circuit and held that the FSIA provides the exclusive basis of federal jurisdiction over suits against foreign states.
The President’s Foreign Affairs Power
Authors: Trimble Phillip R.
Published: April 2006

In the wake of Vietnam and Watergate, Congress set out to attack the imperial Presidency and to recapture its “historic constitutional role” in foreign policy. The tools of congressional activism included the National Commitments Resolution, the War Powers Resolution, the Case Act, the legislative veto over arms sales and nuclear exports, trade restrictions aimed at the Soviet Union and regulation of intelligence activities. In response, Presidents Carter and Reagan charged that Congress was invading presidential prerogatives. Joined by former executive branch officials and academic commentators, they saw an imperial Congress and believed the solution was a strengthened Presidency.
United States v. Stuart
Authors: Price Daniel M.
Published: April 2006

In response to a request by Canadian tax authorities under the United States-Canada Double Taxation Convention (Convention), the U.S. Internal Revenue Service (IRS) issued summonses to obtain U.S. bank records concerning certain accounts of respondents, Canadian citizens whose Canadian tax liability was under investigation. Respondents sought to quash the summonses, arguing that because under 26 U.S.C. §7609(b) the IRS is prohibited by U.S. law from using its summons authority to obtain information about a U.S. taxpayer once a case is referred to the Justice Department for prosecution, and because the tax investigation of respondents was part of a Canadian criminal investigation, the IRS should be precluded from using its summons authority to honor the Canadian request under the Convention. Unsuccessful in the district court, respondents prevailed in the U.S. Court of Appeals for the Ninth Circuit, which held that under the “good faith” standard applicable to enforcement of domestic summonses, the IRS may issue a summons pursuant to a Convention request only if it first determines and makes an affirmative statement to the effect that the Canadian investigation has not reached a stage analogous to a Justice Department referral by the IRS. The U.S. Supreme Court (per Brennan, J.) reversed, and held: (1) that if the summons is issued in good faith, it is enforceable regardless of whether the Canadian request is directed toward criminal prosecution under Canadian law; and (2) neither United States law nor anything in the text or the ratification history of the Convention supports the imposition of additional requirements. Justice Kennedy (joined by O’Connor, J.), concurring in part and in the judgment, filed a brief opinion to state his view that it is unnecessary to decide whether Senate preratification materials are authoritative sources for treaty interpretation. Justice Scalia, concurring in the judgment, wrote separately to oppose the use of such materials in treaty construction.
United States v. Palestine Liberation Organization
Authors: Koenig Eric S.
Published: April 2006

Plaintiff, the United States, brought an action in the U.S. District Court for the Southern District of New York against the Palestine Liberation Organization (PLO) and four individuals seeking an injunction to close the PLO’s Permanent Observer Mission (Mission) to the United Nations as violative of the Anti-Terrorism Act of 1987 (ATA). The district court (per Palmieri, J.) entered summary judgment for defendants and held: (1) the ATA does not require the closure of the PLO’s Mission to the United Nations; (2) the status of the PLO’s Mission, an invitee of the United Nations, is protected by the Agreement Between the United States and the United Nations Regarding the Headquarters of the United Nations (Headquarters Agreement); and (3) Congress did not intend the ATA to supersede the Headquarters Agreement.
The Decisions Bridging the GATT 1947 and the WTO Agreement
Authors: Moore Patrick M.
Published: April 2006

On September 20, 1986, the contracting parties to the General Agreement on Tariffs and Trade of 1947 (GATT 1947) agreed to launch an eighth round of multilateral trade negotiations known as the Uruguay Round. More than seven years later they concluded the round, not with an amended version of the GATT 1947, but with an entirely new treaty, the Agreement Establishing the World Trade Organization.
The Fifty-First Session Of The Un Commission On Human Rights
Authors: Crook John R.
Published: April 2006

The fifty-first session of the UN Human Rights Commission took place in Geneva from January 30 to March 10, 1995, under the genial chairmanship of Musa bin Hitam of Malaysia.’ The Commission showed that great powers are not exempt from critical consideration by the UN human rights machinery, addressing human rights situations involving three permanent members of the Security Council: China, Russia and die United States.

The Commission closed the book on its years of activity concerning South Africa. Indigenous issues assumed a higher profile. The Commission took a cautious look at whether it had a role in the important “gray area” of internal armed conflict. In a controversial move, it created a new Special Rapporteur on human rights and toxic wastes.
The Forty-Fourth Session of the International Law Commission
Authors: Rosenstock Robert
Published: April 2006

The International Law Commission of the United Nations held its 44th session from May 4 to July 24, 1992, under the chairmanship of Professor Christian Tomuschat. The Commission considered aspects of state responsibility, the possible establishment of an international criminal court, international liability for injurious consequences arising out of acts not prohibited by international law, and its future plan of work and working methods.