bluuebunny/crossref_metadata_2025 huggingface dataset:
The Concept of Special Custom in International Law
Authors: D’Amato Anthony A.
Published: April 2006

There are regrettably few cases in international law that go into the question of the proof necessary to establish a customary rule binding upon the defendant state. And from those few cases, notably those decided by the World Court, most writers have drawn pessimistic conclusions as to the proof needed for custom because of the Court’s apparent insistence, in Professor Palk’s words, upon “some tangible evidence of consent on the part of the state that is bound.” A showing of consent is a very difficult proposition. Many legal disputes arise precisely because neither side has previously consented to the same rule. As Lauterpacht argued, to say that prior consent must be shown in order to reach a legal conclusion in any given international dispute is tantamount to rejecting the possibility of the existence of the vast majority of the rules of international law. But then, how can we explain the World Court’s reasoning in the Asylum, Right of Passage, and Fisheries Cases in which the element of consent on the part of the defendant states seemed to play such a vital role in the Court’s reasoning concerning the existence of binding rules of law?
Voting Behavior of National Judges in International Courts
Authors: Suh Il Ro
Published: April 2006

It has been assumed in international adjudication that each state in the litigation should be permitted to have a judge of its own nationality on the bench. This practice of employing national judges in international courts is deeply rooted in the history of arbitration and judicial settlement. Responding to a demand for it, the Committee of Jurists in 1920–1921 embodied the plan in Article 31 of the Statute of the Permanent Court of International Justice. This article was transferred intact to the Statute of the present International Court of Justice in 1945. Whether judges of the nationality of the parties, either in arbitration tribunals or in courts of justice, can be counted upon to be as “independent” as the processes of justice require, and as Article 2 of the present Statute stipulates, is a question of some moment to present-day international justice. It has been suggested as an alternative that a judge on the International Court of the nationality of the litigant should abstain; thus a state with no judge of its nationality on the Court would not be at a disadvantage.
Principles of International Law Concerning Friendly Relations and Co-Operation Among States
Authors: Houben Piet-Hein
Published: April 2006

Since the very beginning of its existence the United Nations, like the League of Nations before it, has experienced how difficult it is to define the scope of the most general and fundamental principles of international law in a declaration of legal significance. Today this is still the case, as appears from the efforts undertaken since the establishment four years ago of a United Nations Special Committee, which was given the task of studying in what way and to what extent the primary principles of international law contained in the Charter could yield rules adapted to the changed world situation. Before considering in detail the most recent proceedings of the Special Committee, it seems useful briefly to recall the context within which the Committee started its work.
The Logan Act: Paper Tiger or Sleeping Giant?
Authors: Vagts Detlev F.
Published: April 2006

For 167 years the shadow of the Logan Act has fallen upon those Americans who trespass on the Federal monopoly of international negotiations which it creates. In theory, up to three years’ imprisonment and a $5,000 fine await those Americans who, without authority, communicate with a foreign government intending either (a) to influence that government with respect to a controversy with the United States or (b) to defeat the measures of the United States. Though only one indictment and no trial have taken place under the Act, who can tell when a new Administration, thinner skinned or harder pressed than its predecessors, may in its irritation call into play this sleeping giant? Now, at a time when domestic opposition to certain aspects of our foreign policy has reached a pitch unknown for many years, it would be well to reflect upon this curious product of the confluence of criminal law and foreign relations law before we are in fact confronted by a test of its strength. All could be the losers from an unpremeditated encounter—the defendant by finding himself, perhaps to his very great surprise, the first person subjected to the Act’s severe criminal penalties, the Government by finding itself stripped of its long accustomed protection by a ruling that the statute as it now reads is unconstitutionally vague or restrictive of free speech. Despite its long desuetude as a criminal statute, the Act represents a principle which I cannot help but think is, at its core, a salutary one; that America in sensitive dealings with other governments “speaks with one voice.” It embodies the concept of bipartisanship, that quarrels about foreign relations are fought out domestically and not with the adversary. It deters sometimes very ill-advised attempts to take the conduct of foreign affairs into foolish and unauthorized hands. On the other hand, it cuts into freedoms which we regard as having the highest value, and many of the situations in which its use has been suggested clearly involve no danger that would justify such a restraint.
Methods to Expedite Environment Protection: International Ecostandards
Authors: Contini Paolo , Sand Peter H.
Published: April 2006

Public concern over the environmental crisis has begun to stimulate not
only action on the local and national level but also proposals for new international efforts, mobilized especially by current preparations for the United Nations Conference on the Human Environment scheduled to be held at Stockholm in June, 1972.1 Some of these proposals are being presented in the form of draft conventions, such as the Draft Convention on Conservation of the World Heritage, prepared by the International Union for Conservation
of Nature and Natural Resources (IUCN),2 and the Draft Convention for the Regulation of Transportation for Ocean Dumping, prepared by a U.N. inter-governmental working group on marine pollution.
Aircraft Hijacking: What is Being Done
Authors: Evans Alona E.
Published: April 2006

Sixty-six aircraft of United States or foreign registration were hijacked from January 1, 1961 through 1968; 277 aircraft of U.S. or foreign registration were hijacked from January 1, 1969 through 1972; nine aircraft of foreign registration, and none of U.S. registration, were hijacked in the first eight months of 1973. Inherent in these figures is an evolution in the nature of the offense and an intensification of rigor in the national and international response to the offense, as well as the emergence of certain legal and political problems as yet unresolved. At the same time, the dramatic decline in hijacking between January and August 31, 1973 should be greeted with caution, not euphoria, lest there be a regression to the condition of national and international complacency about aircraft hijacking which obtained up to 1968.
The North Sea Continental Shelf Cases—A Critique
Authors: Friedmann Wolfgang
Published: April 2006

The decision of the International Court of Justice in the North Sea Continental Shelf Cases is surely one of the most interesting as well as debatable decisions in the history of the Court. It deals with certain aspects of one of the most important new developments of international law, the doctrine of the Continental Shelf. It also touches on some basic problems of the sources of international law. Among the matters dealt with, in greater or lesser detail, by the Court are the formation of custom in contemporary conditions, the effect of custom upon treaty and, in turn, the possible translation of principles formulated in a multilateral treaty, into universal custom. Above all, the Court was compelled to formulate certain principles of general equity as applicable to the delimitation of the continental shelves between three of the coastal states of the North Sea. It is this attempt of the Court to formulate the general principles of equity applicable to a fair allocation of the resources of the Continental Shelf between neighbors with which the present article will be mainly concerned.
The Beirut Raid and the International Law of Retaliation
Authors: Falk Richard A.
Published: April 2006

On the night of December 28, 1968, eight Israeli helicopters took part in an attack on the Beirut International Airport. Israeli commandos descended from six of the helicopters (the other two hovered above) that had landed either on runways or at the hangars of the airport. All commercial aircraft belonging to Arab airlines were destroyed by explosives being placed in the nose-wheel well and in the undercarriage well of each plane. The attack resulted in the destruction of 13 planes whose worth has been estimated to be $43.8 million. Additional damage has been reported done to hangars and other airport installations. Lebanese sources report that two Israeli commandos were injured by gunfire from airport guards. There was no loss of life.
More on the Depositary of International Treaties
Authors: Rosenne Shabtai
Published: April 2006

The purpose of this article is to bring up to date the present writer’s previous article on “The Depositary of International Treaties” published in this Journal, in the light of the deliberations of the United Nations Conference on the Law of Treaties in 1968 and 1969 and the changes there made in the texts. The relevant provisions now appear as Articles 76, 77 and 78 of the so-called Vienna Convention on the Law of Treaties, corresponding to Articles 71, 72 and 73 of the draft articles on the law of treaties of the International Law Commission.
Self-Determination
Authors: Emerson Rupert
Published: April 2006

Any examination of self-determination runs promptly into the difficulty
that while the concept lends itself to simple formulation in words which
have a ring of universal applicability and perhaps of revolutionary slogans,
when the time comes to put it into operation it turns out to be a complex
matter hedged in by limitations and caveats. In a different turn of phrase,
what is stated in big print—as in the reiterated United Nations injunction:
All peoples have the right to self-determination—is drastically modified by
what follows in small print. Indeed, once the major original exercise of
self-determination has been undertaken, the small print takes over and
becomes the big print which establishes the new and far more restrictive
guidelines.
Technological Challenge to the Shared Environment: United States Practice
Authors: Kirgis Frederic L.
Published: April 2006

In an era of expanding interest in international environmental problems,1 it is essential to examine the rapidly developing state practice concerning man's startling capability, through the use of technology without any hostile intent, adversely to alter not just the immediate environment of his neighbor but common resources shared by all. The present discussion does not attempt to deal with the practice of all states, but rather considers the extent to which legally relevant expectations of restraint, are being shaped by United States practice concerning the use of novel technology in the res communis? The focus on United States practice reflects the belief that, within the confines of a law journal article, considerable light may be shed on world community expectations by an examination of the practice of a state which has a major interest in the field and which
is a significant participant in the international law-creating process.
Islands and the Delimitation of the Continental Shelf: A Framework for Analysis
Authors: Karl Donald E.
Published: April 2006

This article examines one of the recurring problems in the law of the sea—the treatment of islands in the delimitation of the continental shelf between opposite and adjacent states—in light of developments at the Third UN Conference on the Law of the Sea, in particular, the adoption of “equitable principles” as the standard for delimitation of the continental shelf and exclusive economic zone between adjacent and opposite states. On the assumption that the content of these equitable principles may be derived from contemporary state practice in maritime delimitations, this state practice is used as a basis for the construction of an analytical model of the continental shelf problem of islands. This model relies primarily on an island's relative location and secondarily on its relative size with respect to the delimiting states. It provides a framework for determining how an island should be treated in a given delimitation. Though the model is, out of necessity, based upon state practice in continental shelf delimitations, the premises underlying the model are not so limited and thus the general principles derived from this analysis will have an important bearing on the new problem of the delimitation of the exclusive economic zone.
Remote Sensing by Satellite: What Future for an International Regime?
Authors: DeSaussure Hamilton
Published: April 2006

The combined forces of science and technology have been perfecting a new means of data acquisition which has gone largely unnoticed by the average citizen—a technique so profound in its implications for the improvement of the environment and for the allocation and conservation of natural and human resources that it has been compared to the microscope in its significance and achievement. This new technique is the viewing of the earth’s surface and its surrounding environment by means of sensing devices affixed to a platform orbiting the earth from the near reaches of outer space. Remote sensing by satellite (RSS) has been defined by the UN Working Group on Remote Sensing as a methodology
to assist in characterizing the nature and conditions of the natural resources, the natural features and phenomena, and the environment of the earth by means of observation and measurements from space platforms.
The Jurisprudence of International Trade: The Disc Case in Gatt
Authors: Jackson John H.
Published: April 2006

Law in the setting of international relations is a curious institution. Idealists proclaim it to be the potential savior of the planet; cynics thumb their noses at it and direct attention to the difficulty of enforcing its rules. Even in the more regularized setting of international economic relations there is considerable ambiguity and conflict as to the role which law or rules should play, and much worry that recent economic stresses are creating a breakdown in the compliance with those few rules that do exist. Such breakdown can, it is alleged, lead at worst to trends similar to corresponding breakdowns in the 1930’s, or at least to the loss of one otherwise effective implement of diplomacy (rulemaking). Why negotiate new treaty rules if there is little chance they will be observed?
Mineral Agreements in Developing Countries: Structures and Substance
Authors: Smith David N. , Wells Louis T.
Published: April 2006

Despite the many dramatic developments that have occurred over the past half dozen years in relation to the production of natural resources in some areas of the third world, mineral production in most developing countries is still carried out through contractual arrangements between foreign firms and host country governments. The nationalization of the copper industry in Chile and the bauxite industry in Guyana, the spectacular successes of OPEC, and the completed or projected nationalizations of petroleum operations in a number of countries have taken center stage since 1969. Nevertheless, these developments are not typical of the vast majority of mineral arrangements in developing countries.
Corrigenda
Authors: A.P.S.
Published: April 2006

The correct identification of Mr. Herbert Brownell, the coauthor of “The Colorado River Salinity Problem with Mexico” appearing in the April 1975 issue of the Journal at page 255, is “Formerly Attorney General of the United States, 1953”1957.”
Requiem for Hickenlooper
Authors: Lillich R. B.
Published: April 2006

The late Senator Bourke B. Hickenlooper's most famous legislative initiative—the so-called Hickenlooper Amendment to the Foreign Assistance Act—has been defused, if not actually repealed, by a single-sentence section contained in the Foreign Assistance Act of 1973. Although its “apparent demise” had been prophesied for some time, the suddenness with which Congress finally administered the coup de grâce stunned most foreign investment observers and probably accounts for their failure to have proper obituary notices ready.
The Colorado River Salinity Problem with Mexico
Authors: Brownell Herbert , Eaton Samuel D.
Published: April 2006

No other issue in recent times has so troubled our relations [with Mexico]; no other problem has so taxed our determination to seek mutually satisfactory solutions to common problems; no other problem has so tested the sincerity and ingenuity of our diplomats; and no other problem has so challenged the mutual respect and goodwill that our two countries have for each other.
The Fishermen's Protective Act: A Case Study in Contemporary Legal Strategy of the United States
Authors: Meron Theodor
Published: April 2006

The object of this article is to examine and evaluate the Fishermen's Protective Act, as reflecting the legal strategy of the United States in one particular area of its foreign relations law of importance to both the law of the sea and the law of international claims.
Staff of the United Nations Secretariat: Problems and Directions
Authors: Meron Theodor
Published: April 2006

The Secretary-General of the United Nations has recently referred to the goal of building up an international staff of the highest standard of efficiency, competence, and integrity, responsible only to the Organization and with as wide a geographical basis as possible. He acknowledged that the fact that the United Nations is a predominantly political organization inevitably exposes the Secretariat to pressures from many quarters although “Governments have generally made great efforts to respect the terms of Article 100, paragraph 2, of the Charter.…” He expressed the belief that it has been widely recognized that an objective independent Secretariat is in the long run in the best interest of all member states.
The Currency Exchange Rate Provisions of the Proposed Amended Articles of Agreement of the International Monetary Fund
Authors: Edwards Richard W.
Published: April 2006

A comprehensive amendment to the constitutional instrument of the International Monetary Fund has been submitted to the 128 member states of that organization for their acceptance in order that it may enter into force. The “Proposed Second Amendment” to the Articles of Agreement of the International Monetary Fund was approved by the IMF’s Board of Governors on April 30, 1976. In the United States and many other countries the amendment will, in accordance with internal law, be submitted to appropriate legislative bodies for consent to acceptance.
The Palestinian Refugees: The Right to Return in International Law
Authors: Radley Kurt René
Published: April 2006

In 1975 the UN General Assembly established a 20-member Committee on the Exercise of the Inalienable Rights of the Palestinian People to prepare a program of implementation to enable the Palestinians to exercise the rights recognized in Resolution 3236 adopted by the General Assembly the previous year. Among the rights affirmed in that resolution is “the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted …” The Committee’s report and recommendations were completed and submitted to the Secretary-General for transmittal to the Security Council in June 1976.
Developments in the Law and Institutions of International Economic Relations
Authors: Rubin Seymour J.
Published: April 2006

A few years ago expert opinion seemed to be veering sharply toward the conclusion that the multinational enterprise had put national sovereignties “at bay.” As astute an observer as Raymond Vernon was writing that “sovereign states are feeling naked,” that concepts such as national sovereignty and economic strength appeared to be “drained of meaning,” that the consequent sense of “nakedness and dependence” had focussed interest on the “institutions which are thought to be the main agents of the change,” and that prominentamong these was the “multinational enterprise.”
New Foundations of the Law of Expropriation of Alien Property
Authors: Dolzer Rudolf
Published: April 2006

The continuous stream of resolutions of the UN General Assembly and much academic writing on the subject notwithstanding, the present state of customary international law regarding expropriation of alien property has remained obscure in its basic aspects; this is true in particular for expropriations in the context of North-South (still better described as “West-South”) relations, to which this article is primarily, but not exclusively, addressed. International courts have had no occasion to rule on fundamental issues of expropriation law in the past decades, even though these issues have been relevant to various disputes settled out of court. Eventually, however, the courts will be confronted with cases involving expropriation of alien property: given the continuing and rising importance of foreign investment, the parties involved probably will not invariably prefer negotiated settlements. It must also be recalled here that customary law has occasionally served as a reference standard in treaties and contracts. If an expropriation case were brought before an international tribunal, it could not simply rule that the law governing expropriation of alien property is in dispute and therefore no law at all is applicable. The very notion of international law precludes an argument that acknowledges the existence of “gray areas” in that law: a court could not rule that some law exists, but that it cannot be identified by judicial means.
The Thirty-Fourth Session of the International Law Commission
Authors: McCaffrey Stephen C.
Published: April 2006

The 34th session of the international Law Commission was held in Geneva from May 3 to July 23, 1982, and was chaired by the Commission’s dean, Professor Paul Reuter of France. This was the first meeting of the Commission in its new and enlarged composition. Its composition was new in the sense that all of its members were beginning a new 5-year term of office, the term of the former Commission having expired at the end of 1981. It was enlarged as a result of a decision taken by the General Assembly at its session in the fall of 1981 to expand the membership of the ILC from 25 to 34.
The Regime of Straits and National Security: An Appraisal of International Lawmaking
Authors: Reisman W. Michael
Published: April 2006

The United States military potential may be viewed in two interlocking dimensions. The first is nuclear deterrence: the maintenance of a posture designed to deter other states with nuclear military potential from nuclear adventures. The second is comprised of nuclear and more conventional capabilities, designed to communicate to the widest spectrum of adversaries a capacity and willingness to exercise coercion in different settings in order to protect vital national interests.
Satellite Communication and Spectrum Allocation
Authors: Rothblatt Martin A.
Published: April 2006

The orbit/spectrum resource is one of the world’s most important reservoirs of value. This resource has a dual “orbit/spectrum” nature because its value can only be realized through the simultaneous exploitation of both the geostationary orbit and the electromagnetic spectrum. The geostationary orbit, a ring of space six earth radii above the equator, is where a communications satellite must be placed in order to assume a fixed position in the sky. These fixed or “geostationary” positions are extremely desirable because they allow the satellite to serve as a dependable relay platform for messages sent between large numbers of geographically isolated communicators.
Retaliation or Arbitration—or Both? The 1978 United States-France Aviation Dispute
Authors: Damrosch Lori Fisler
Published: April 2006

It began as a very small dispute. Pan American World Airways planned to introduce a service from San Francisco to Paris with a stop in London, using a Boeing 747 aircraft from San Francisco to London and a smaller Boeing 727 aircraft from London to Paris. The change to a smaller plane would have enabled the most efficient and economic use of Pan Am’s fleet. In aviation as in railroad terminology, a change along a route to equipment of a different size is called a “change of gauge.”
Choice of Law Under the International Sales Convention: A U.S. Perspective
Authors: Dore Isaak I.
Published: April 2006

The United Nations Convention on Contracts for the International Sale of Goods was adopted on April 10, 1980. The chief reason for its adoption was that the prior Uniform Law on the International Sale of Goods (ULIS) and its supplementary Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) had not received widespread support.
Dispute Settlement Under the Vienna Convention on Succession of States in Respect of Treaties
Authors: Lavalle V. Roberto
Published: April 2006

The Vienna Convention on Succession of States in Respect of Treaties (the Convention), adopted on August 23, 1978, by the United Nations Conference on Succession of States in Respect of Treaties, contains five articles, numbered 41 to 45, forming part VI of the Convention, entitled “Settlement of Disputes.” As this title implies, those articles set forth methods and procedures to be applied for settling disputes relating to the interpretation and application of the Convention. They are complemented by an annex to the Convention, which specifies the modalities of a conciliation procedure that is the subject of Article 42.
New Life for the Laws of War
Authors: Aldrich George H.
Published: April 2006

On December 11, 1977, the Swiss Government opened for signature two Protocols to the four Geneva Conventions of 1949 on the Protection of War Victims. Forty-four governments signed either one or both Protocols on that day, and, by September 1979, 62 governments had signed one or both Protocols. The Protocols entered into force on December 7, 1978, and by October 1980, were in force for 15 states. One of these Protocols develops the law applicable in international armed conflicts, and the other expands the protections currently accorded to the victims of noninternational armed conflicts by Article 3 common to the 1949 Conventions. Together the Protocols represent many years of effort, first by the International Committee of the Red Cross, and more recently by more than one hundred governments assembled in conference. During more than 8 months of conference sessions over 4 years, these governments struggled to correct the perceived deficiencies in the law and to develop and articulate new rules to improve the protections available to the victims of armed conflicts. Each government drew on its own experiences, and the result may reasonably be thought to be the composite reaction by the international community to the perceived inhumanities of wars during the past quarter century. Since we shall probably have to wait at least another quarter century before new efforts are made to develop the law further, it would seem appropriate to begin to analyze the two new Protocols and to draw some conclusions about them. This article, written by an active participant in the Geneva conference, attempts to contribute to this process by analyzing a few of the more significant developments in the law contained in Protocol I, that is, the Protocol dealing with international armed conflicts.
Recent Developments in United Nations Treaty Registration and Publication Practices
Authors: Tabory Mala
Published: April 2006

The framework for the systematic registration and publication of international agreements on an intergovernmental level was set in Article 18 of the League of Nations Covenant, and later in Article 102 of the United Nations Charter. The purpose of treaty registration and publication is to give effect to the principle and policy of “open covenants”—enunciated as the first of President Wilson’s Fourteen Points—in lieu of secret diplomacy. In addition, these procedures serve to record “contemporary trends in substantive international law” for the benefit of judicial and government practitioners, scholars, and specialists in various fields.
State Liability for Accidental Transnational Environmental Damage by Private Persons
Authors: Handl Günther
Published: April 2006

A striking feature of our times is that private individuals and corporations are engaging increasingly in activities that may result in significant accidental damage to the transnational environment. The international community has responded to this phenomenon by strengthening the transnational accountability of the private actors. Significant efforts have been made to obtain wide international acceptance of the principle of “equal right of access,” that is, the right of the actual or potential victim of transnational pollution to have recourse, for the purposes of both prevention and compensation, to the national authorities that exercise jurisdiction or control over the private actor concerned. A similar endeavor is discernible towards ensuring, at least in certain cases, that the private actor will maintain minimal financial resources for compensating victims of accidental transnational pollution damage.
The IX Inter-American Indian Congress
Authors: Barsh Russel Lawrence
Published: April 2006

Forty-five years ago, U.S. Indian Commissioner John Collier helped persuade the members of the Pan American Union (now the Organization of American States) to establish the Inter-American Indian Institute “to elucidate the problems affecting the Indian groups within their respective jurisdictions, and to cooperate with one another, on a basis of mutual respect for the inherent rights of each to exercise absolute liberty in solving the ‘Indian Problem’ in America.” Operating under an international convention concluded in November 1940 and governed by a board of 21 state representatives, the Mexico City-based Institute is charged with “scientific investigations,” technical assistance to national Indian agencies and “the training of men and women experts devoted to the problems of the Indian.” Institute policy is also guided by an Inter-American Indian Congress of governmental administrators of Indian affairs, which is convened every four years.
The Three “Theme” Special Rapporteurs of the UN Commission on Human Rights
Authors: Weissbrodt David
Published: April 2006

In March 1982, the United Nations Commission on Human Rights initiated the appointment of a Special Rapporteur on Summary or Arbitrary Executions. The Special Rapporteur on Summary or Arbitrary Executions has done far more than merely study that grave human rights problem; he has received complaints about impending and past executions, issued appeals to governments about threatened executions and the need to investigate past killings, and reported publicly on much of his activity. The Commission on Human Rights not only has renewed the Special Rapporteur on Summary or Arbitrary Executions in its subsequent annual sessions, but has followed this precedent by appointing in 1985 a similar Special Rapporteur on Torture and in 1986 a Special Rapporteur on Intolerance and Discrimination Based on Religion or Belief.
Progressive Development of International Law and the Package Deal
Authors: Caminos Hugo , Molitor Michael R.
Published: April 2006

For centuries the law of the sea operated efficiently on the basis of customs that had developed through uniform and consistent state practice and that were considered, in most instances, to be obligatory. It was not until the late 19th century that the evolution of the international community suggested the wisdom of codifying the existing and emerging customary norms. Although the early codification efforts were conducted by learned societies established for such purposes, the resulting studies eventually led to several multilateral treaty negotiations, including the Hague Codification Conference of 1930 and the three United Nations Conferences on the Law of the Sea. The fruits of this evolution from the predominance of custom towards universal treaty law are found principally in the Geneva Conventions of 1958 and, more recently, in the United Nations Convention on the Law of the Sea of 1982.
The Return of Humpty-Dumpty: Foreign Relations Law After the Chadha Case
Authors: Franck Thomas M. , Bob Clifford A.
Published: April 2006

Words mean whatever I say they mean, Humpty-Dumpty rather grandly explained shortly before his accident. Similarly, statutes, perforce, mean whatever those who implement them say they mean.
Divestment of the Stock Portfolio of the Society
Authors: Richardson Henry J.
Published: April 2006

On October 25, 1986, the Executive Council of the American Society of International Law decided to divest the Society’s investment portfolio of stocks in all corporations “with direct investments in South Africa.” This action, which was taken by the Council after considerable debate, superseded the Society’s former policy of investing only in corporations with a high ranking under the “Sullivan principles.” The Council’s action is worthy of note in light of recent divestment-related actions, but especially because the resolution of economic considerations was informed by wider issues of law, moral policy making and human rights.
The Soviet Union and the Antarctic Regime
Authors: Boczek Boleslaw A.
Published: April 2006

Ever since the Antarctic regime began the third, crucial decade of its existence following the entry into effect of the Antarctic Treaty in 1961, interest in the frozen continent has escalated. This interest has spawned an immense social science literature, which analyzes the diverse legal, political and economic aspects of Antarctica and the surrounding oceans. The Antarctic regime has been universally and deservedly hailed both in the West and, especially, in the East as an unprecedented example of peaceful cooperation among states professing conflicting ideologies and, one might add, belonging to adversary alliances—as witnessed especially by the participation in the regime of the two superpowers, the United States and the Soviet Union. Yet much of the pertinent scholarly writing devotes primary or exclusive attention to the position of the United States within this regime; except for incidental references in some works, not one study has appeared anywhere that deals with the position of the Soviet Union on major substantive issues arising within the context of the Antarctic regime. This study will attempt to fill this gap by comprehensively examining the topic of Soviet participation in the affairs of the southern continent.
The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding
Authors: LeBlanc Lawrence J.
Published: April 2006

The United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) in December 1948. A representative of the United States signed the Convention, and President Truman later transmitted it to the Senate with a request that it give its advice and consent to ratification. The Senate Foreign Relations Committee held hearings on the Convention in 1950. It has since held hearings on four occasions (1970, 1971, 1977 and 1981), and favorably reported the Convention to the Senate four times (1970, 1971, 1973 and 1976). However, the Senate has failed to act; a resolution of ratification was debated on the floor in 1973-1974, but it fell victim to a filibuster and the Convention remains in committee.
The UN Group of Governmental Experts on International Co-Operation to Avert New Flows of Refugees
Authors: Lee Luke T.
Published: April 2006

Since its founding in 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) has rendered invaluable services and assistance to millions of refugees throughout the world. Indeed, in recognition of its services, it has twice been awarded the Nobel Peace Prize. However, the “entirely non-political character” of its work has been interpreted as precluding it from actively seeking solutions to the generation of refugees, particularly when the responsibilities of source countries are involved. The UNHCR is debarred altogether from concerning itself with the Palestinian refugees, even though the role of the United Nations Relief and Works Agency (UNRWA), which was created specifically to aid them, is considerably narrower than that of the UNHCR vis-à-vis other refugees.
International Lawlessness in Grenada
Authors: Boyle Francis A. , Chayes Abram , Dore Isaak , Falk Richard , Feinrider Martin , Ferguson C. Clyde , Fine J. David , Nunes Keith , Weston Burns
Published: April 2006

The Reagan administration’s arguments purporting to justify the invasion of Grenada under international law must not be allowed to inveigle the American people into supporting this violent intervention into the domestic affairs of another independent state. Throughout the 20th century, the U.S. Government has routinely concocted evanescent threats to the lives and property of U.S. nationals as pretexts to justify armed interventions into sister American states. The transparency of these pretexts was just as obvious then as it is now. The Reagan administration has not established by means of clear and convincing evidence that there did in fact exist an immediate threat to the safety of U.S. citizens in Grenada. Even then, such a threat could have justified only a limited military operation along the lines of the Israeli raid at Entebbe for the sole purpose of evacuating the major concentration of U.S. nationals at the medical college.
Discovery of Documentary and Other Evidence in a Foreign Country
Authors: von Mehren Robert B.
Published: April 2006

There are substantial differences between attitudes in the United States and those in foreign jurisdictions towards litigation in general and pretrial discovery in particular. Thus, in the United States, there is a breadth of pretrial discovery that cannot be found in any other legal system. Moreover, factual investigation in the United States is largely controlled and conducted by the attorneys for the litigants rather than by the judiciary which, in many other legal systems, is responsible for such investigations in a litigated matter.
The War Powers Resolution Ten Years Later: More Politics than Law
Authors: Glennon Michael J.
Published: April 2006

On November 7, 1973, Congress overrode the veto of President Richard Nixon and enacted a law intended to “insure that the collective judgment of both the Congress and the President will apply to the introduction of the United States Armed Forces into hostilities.” A war-making process that had too long been political, many legislators euphorically believed, had been made legal.
Sabbatino Resurrected: The Act of State Doctrine in the Revised Restatement of U.S. Foreign Relations Law
Authors: Halberstam Malvina
Published: April 2006

Among the more controversial provisions of the Restatement of the Foreign Relations Law of the United States (Revised), are the sections dealing with the act of state doctrine in Tentative Draft No. 4. Section 428 provides: “Subject to §429, courts in the United States will refrain from examining the validity of an act of a foreign state taken in its sovereign capacity within the state’s own territory.” This provision, of course, is based on the Supreme Court decision in Sabbatino. The Court there stated, “the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government” even if it is alleged that the taking is contrary to international law.
Linkages Between International Human Rights and U.S. Constitutional Law
Authors: Lillich Richard B. , Hannum Hurst
Published: April 2006

While many law schools now offer separate courses or seminars on international human rights law, the number of students exposed to such specialized study remains relatively small. Human rights law is relevant to many other segments of the law school curriculum—in particular, to courses on constitutional law and individual rights—although little scholarly attention has been devoted to date to integrating appropriate human rights issues into the “bread and butter” courses that all law students take. To begin to address this lacuna, the Procedural Aspects of International Law (PAIL) Institute has undertaken to develop a human rights component or module designed to supplement leading constitutional law course books and present methods of teaching constitutional law.
The Moon Treaty Enters Into Force
Authors: Christol Carl Q.
Published: April 2006

On July 11, 1984, the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies entered into force following the deposit with the Secretary-General of the United Nations of the fifth instrument of ratification. The Agreement, following its adoption by the General Assembly, was opened for signature on December 18, 1979. In the intervening years, it has been signed by Austria, Chile, France, Guatemala, India, Morocco, the Netherlands, Peru, the Philippines, Romania and Uruguay. The fifth state to deposit its ratification was Austria, which followed Chile, the Philippines, Uruguay and the Netherlands.
Ex Gratia Payments and the Iranian Airline Tragedy
Authors: Maier Harold G.
Published: April 2006

The question whether the United States Government should pay ex gratia compensation to the survivors of those killed in the accidental destruction of Iranian Airlines Flight No. 655 raises some important issues of law and policy. In the following comments, I have attempted to provide a brief overview of the issues involved. …
Committee of United States Citizens Living in Nicaragua v. Reagan
Authors: Wald Martin
Published: April 2006

Appellants sued President Reagan and other executive branch officials in the U.S. district court to enjoin U.S. military aid to the Nicaraguán resistance forces (contras), alleging that the aid violated the Fifth Amendment to the Constitution, the United Nations Charter and customary international law. The district court, in an unpublished opinion, dismissed the complaint as presenting nonjusticiable political questions. The Court of Appeals for the District of Columbia Circuit (per Mikva, J.), affirming the dismissal on different grounds, held that (1) the trial court’s blanket invocation of the political question doctrine was inappropriate; (2) the statute funding the contras prevails over any earlier obligations under treaties or customary international law; (3) individuals have no private right of action to enforce decisions of the International Court of Justice; (4) adherence to an ICJ judgment rendered under a disputed assertion of compulsory jurisdiction is not required as a matter of jus cogens; and (5) plaintiffs had failed to show that U.S. government support of the contras caused their injuries or was so arbitrary and unreasonable as to violate their Fifth Amendment rights.
New Departures in the Exercise of Inherent Powers by the un and Oas Secretaries-General: The Central American Situation
Authors: Caminos Hugo , Lavalle Roberto
Published: April 2006

The successive holders of the office of Secretary-General of the United Nations have displayed considerable boldness and resourcefulness in the exercise of powers not spelled out in the Charter of the Organization but regarded as inherent in the office. Not surprisingly, the majority, but not all, of the numerous instances in which the United Nations Secretary-General has acted under those powers have concerned political questions. This activity, which usually aims either at forestalling potential disputes or at settling or assisting in the settlement of actual ones, has taken on a multiplicity of forms. In fact, just prior to the substantive involvement of the Secretary-General in the Central American situation, which was initiated in November 1986 and constituted yet another example of the use of his inherent powers, a point had been reached where very little room appeared to remain for significant innovation in the use of those powers to promote the settlement of disputes. Nevertheless, that situation gave the UN Secretary-General an opportunity to demonstrate that new ground could still be broken in this respect.
The Roles of Equity in the Delimitation of Maritime Boundaries
Authors: Nelson L. D. M.
Published: April 2006

The recent decisions of the International Court of Justice and various arbitral tribunals with respect to the delimitation of maritime boundaries between states raise certain fundamental problems of jurisprudence. Among these are the legal consequences emanating from the proposition that each boundary is a unicum, that is to say, it is unique or monotypic; the part to be played by equity in the delimitation process; the role of equidistance; the legal consequences of the demise of natural prolongation and the emergence of the distance criterion or principle; the notion of a properly structured system of equity; and the proper function of the Court or tribunal in dealing with these matters.
Our Responsibility to Future Generations
Authors: Gündling Lothar
Published: April 2006

In recent years, lawyers have begun to join ecologists in debating whether there are—or should be—obligations to protect the interests of future generations. This legal debate was preceded by a philosophical one, dating back to the early 1970s, on the emergence of a new or “ecological” ethic redefining the relationship between man and nature in such a way as to ensure the survival of the human species on earth. The background to the various ethical approaches has been the indisputable fact that humanity has accumulated a monstrous potential to destroy life on earth, and that it is using natural resources and the environment in a way that threatens the survival of future generations—at least, at a standard that we today consider worthy of human beings.
Kowalska v. City Of Hamburg
Authors: Kokott Juliane
Published: April 2006

Maria Kowalska, a former administrative officer of the City of Hamburg, requested payment of an extra allowance on the occasion of her retirement. The Collective Agreement for Federal Employees (Agreement) prescribed such allowanees for full-time employees only. Ms. Kowalska was a part-time employee and was therefore not entitled to the extra allowance according to the Agreement. The questions the Labor Court Hamburg referred to the Court of Justice of the European Communities were: (1) whether a collective bargaining agreement provision excluding part-time employees from certain allowances violates Article 119 of the Treaty Establishing the European Communities (equal pay for men and women), part-time employees being mostly female; and (2) if there is discrimination incompatible with EEC law, do part-time employees have a right to extra allowances proportionate to their working hours on the basis of Articles 119 and 117 (improvement and harmonization of workers’ conditions) and Council Directive 75/117 on equal pay for men and women, notwithstanding the provision to the contrary in the Agreement, or do freedom and autonomy in collective bargaining preclude such a right?
The New Polish-German Treaties and the Changing Political Structure of Europe
Authors: Czaplinski Wladyslaw
Published: April 2006

The bilateral treaties concluded by Poland and Germany on November 14, 1990, and June 17, 1991, are an ideal illustration of the political and social changes in Central Europe. They were intended to constitute a turning point in the relations between the two neighbors, enemies for centuries that are now starting to construct a common future.