Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, concluded in Geneva in 1977, is the most important treaty codifying and developing international humanitarian law since the adoption of the four Conventions themselves; and it is the first such treaty since 1907 to deal with methods and means of warfare and the protection of the civilian population from the effects of warfare. As such, its contributions to the law were long overdue and, on the whole, are both positive from the humanitarian point of view and practicable from the military point of view. Moreover, it offers the prospect of improved compliance with international humanitarian law, which would greatly benefit the victims of war and would bring the law in action closer to the law in the books. Yet, in January 1987, the President of the United States informed the Senate that he would not submit the Protocol to the Senate for its advice and consent to ratification, calling it “fundamentally and irreconcilably flawed.” It is apparent that President Reagan’s decision resulted from misguided advice that exaggerated certain flaws in the Protocol, ignored the statements of understanding that would have remedied them, and misconstrued a humanitarian and antiterrorist instrument as one that could give aid and comfort to “terrorists.”

Writers of science fiction have often speculated about what it would be like to discover, on a planet in outer space, a much higher form of intelligence. How would we react to those creatures? Would we be so fearful of them that we would try to kill them? Or would we welcome the opportunity to attempt to understand their language and culture? Stranger than fiction is the fact that there already exists a species of animal life on earth that scientists speculate has higher than human intelligence. The whale has a brain that in some instances is six times bigger than the human brain and its neocortex is more convoluted. Discussing the creative processes of whales, Dr. John Lilly says that a researcher “is struck with the fact that one’s current basic assumptions and even one’s current expectations determine, within certain limits, the results attained with a particular animal at that particular time.” Whales speak to other whales in a language that appears to include abstruse mathematical poetry. They have also developed interspecies communication with dolphins. Whales are the most specialized of all mammals.

The United Nations system is an elegant, carefully crafted instrument to make war illegal and unnecessary. To this end, in Article 2(4) of the UN Charter, members are required to “refrain … from the threat or use of force against the territorial integrity or political independence of any state.”

If such force is used despite that prohibition, the Charter envisages two kinds of military remedies: wars of self-defense and police actions. Article 51 authorizes members to use military force in exercise of the “inherent right of individual or collective self-defence if an armed attack occurs” in violation of Article 2(4). This provision merely recognizes that the old war system may still be needed until the new system of global policing can secure the peace for all.

Does Security Council Resolution 678, read in conjunction with the United Nations Charter, confer authority on the President under United States domestic law to introduce the United States Armed Forces into hostilities? The operative part of the resolution provides that the Security Council:

• 1. Demands that Iraq comply fully with resolution 660(1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so;

• 2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

• 3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution;

• 4. Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;

• 5. Decides to remain seized of the matter.

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

Throughout history, decisions to go to war have been made by a handful of individuals in powerful positions. American constitutionalists from James Madison’s day through our own have tried to establish a better system of deciding for war, by shifting the locus of responsibility from one person to a broadly representative group. The Persian Gulf crisis has shown all too vividly what dangers lie in the persistence of processes that put awesome amounts of force at the disposition of single individuals, and how much is at stake in developing and nurturing structures of deliberation and accountability.

Out of the long catalog of international law issues pertaining to prisoners of war, civilians and diplomats currently affected by the Persian Gulf crisis, I have selected for brief discussion a few that merit special attention.

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

Our intramural, often scholarly, but not always polite, debates about the legitimacy of invasions directed against more-or-less brutal authoritarian governments demonstrate how one’s preferred conception of the nature of law can affect one’s conclusions about its contents.

The celebrants of what I will call the classical view display the following characteristics: while recognizing that states can establish and alter norms through both explicit agreements normally expressed in written texts and implicit agreements manifested in practice, they tend in their epistemology toward a rather strict separation of these two processes; when attempting to identify norms arising from explicit agreements, they presume that the parties had an original intention which can be discovered primarily through textual analysis and which, in the absence of some unforeseen change in circumstances, must be respected until the agreement has expired according to its terms or been replaced by mutual consent; when attempting to identify norms arising from implicit agreement, they rely primarily on relatively formal manifestations of consent, deemphasize the relative power of states, and imply a high threshold below which alleged norms are entirely without legal character.

The unanimous judgment of the European Court of Human Rights in the Soering case, handed down on July 7, 1989, holds that Great Britain’s extradition of the applicant to the United States to stand trial for capital murder, an offense punishable under the applicable Virginia law by “death, or imprisonment for life,” would violate the prohibition against “inhuman or degrading treatment or punishment” in the European Convention on Human Rights. Aside from its effect on the future ability of the United States (and many other countries) to obtain the extradition from Council of Europe countries of persons charged with offenses carrying the death penalty, the judgment in Soering has implications of a far wider nature for international criminal law, the law of state responsibility, the jurisprudence of the European Convention, and international human rights law in general. Some of these implications are obvious and immediate; others are more speculative and long range. Like the proverbial pebble thrown in the pond, Soering will cause ripples for some time to come.

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.

In the course of litigation against an ex-employee, Gould, Inc. (Gould) allegedly learned that its proprietary technical data had been improperly supplied to Mitsui Mining & Smelting Co., Ltd. (Mitsui) and Miyakoshi Machine Tools Co., Ltd. (Miyakoshi), which then used those trade secrets in a joint venture with Pechiney Ugine Kuhlmann, a French state-owned company, and its wholly owned subsidiary, Trefimetaux (Pechiney/Trefimetaux). Gould filed a civil lawsuit against Pechiney/Trefimetaux, together with Mitsui and Miyakoshi, in U.S. district court, alleging violations of the Racketeer Influenced and Corrupt Organizations provisions of the Organized Crime Control Act of 1970 (18 U.S.C. §1961-1968 (1988)) (RICO). Gould’s complaint also included claims of unfair competition and unjust enrichment based upon the defendants’ alleged misappropriation of trade secrets. On the motion of Pechiney/Trefimetaux, the district court held that the civil RICO claim should be dismissed because, as “foreign states” under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §1330, 1602-1611 (1988)) (FSIA), Pechiney and Trefimetaux were immune from criminal indictment for the acts alleged to have formed the basis for the RICO violation.

Petitioner, the Libyan National Oil Corp. (NOC), filed the petition to confirm an arbitral award rendered in Paris against Libyan Sun Oil Co. (LSOC), a Delaware corporation. The petition was based on the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). LSOC opposed the petition on the grounds that NOC was not entitled to access to U.S. courts because of the state of relations between the United States and Libya and that the Libyan Sanctions Regulations prevented NOC from maintaining its claim in the absence of a license from the Treasury Department’s Office of Foreign Assets Control. In addition, LSOC argued that confirmation of the award should be denied under various provisions of the Convention, including the “public policy” defense embodied in Article V(2)(b). The district court (per Latchum, J.) held that NOC had standing to bring the petitión and that the defenses set forth in the Convention were inapplicable. The award was thus confirmed.

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

Phillips Petroleum Co. Iran, a wholly owned subsidiary of Phillips Petroleum Co., brought a claim before the Iran-United States Claims Tribunal against the Islamic Republic of Iran and the National Iranian Oil Co. (NIOC) seeking compensation for the alleged taking of its rights under a joint agreement for the exploration and exploitation of petroleum resources in the Persian Gulf. Chamber Two of the Tribunal concluded that the claimant had been deprived of its property interests during the Iranian Revolution by conduct attributable to the Government of Iran for which respondents were liable to provide compensation. Affirming earlier decisions that the 1955 Treaty of Amity between the United States and Iran requires payment of “just compensation” representing the full equivalent of the property taken, the Tribunal accepted “discounted cash flow” analysis as a central method of determining that value. After making significant adjustments to claimant’s calculations, and considering “all relevant circumstances,” the Tribunal awarded claimant $55 million as the value of the expropriated property, with simple interest at the rate of 10 percent per annum from the date of loss to the date of payment from the Security Account.

A recently concluded special session of the General Assembly adopted, for the first time by consensus, a blueprint for the coordination of national and international economic policies. Carefully worded without any reference to the “New International Economic Order,” the session’s declaration nonetheless echoed the NIEO and its principal instrument, the Charter of Economic Rights and Duties of States, which provided: “States should co-operate in facilitating more rational and equitable international economic relations and in encouraging structural changes in the context of a balanced world economy in harmony with the needs and interests of all countries, especially developing countries, and should take appropriate measures to this end.”