The legal status of humanitarian intervention poses a profound challenge to the future of global order. The central question is easy to formulate but notoriously difficult to answer: Should international law permit states to intervene militarily to stop a genocide or comparable atrocity without Security Council authorization? That question has acquired even greater significance in the wake of military interventions in Kosovo and Iraq, and nonintervention in the Sudan. Concerted deliberation on these issues, however, has reached an impasse. A key obstacle to legalizing unilateral humanitarian intervention (UHI) is the overriding concern that states would use the pretext of humanitarian intervention to wage wars for ulterior motives. In this article, I argue that it is just as likely, or even more likely, that the impact on states would be the opposite. Drawing on recent empirical studies, I contend that legalizing UHI should in important respects discourage wars with ulterior motives, and I discuss changes to international legal institutions that would amplify that potential effect.

The International Law Commission held its fifty-seventh session in Geneva from May 2 to June 3, and from July 11 to August 5, 2005. The Commission continued its work on shared natural resources, reservations to treaties, responsibility of international organizations, unilateral acts of states, and fragmentation of international law. It began work on the effect of armed conflict on treaties and expulsion of aliens, and decided to begin work next year on the obligation to prosecute or extradite. It took no further action for the time being on diplomatic protection or on international liability for transboundary harm, pending the receipt of comments from governments on the texts adopted on first reading in 2004.

Modern international law takes as a fundamental value the condemnation and redress of certain categories of heinous conduct, such as genocide, torture, and crimes against humanity. Recognizing the need to end impunity for those crimes, international law permits a state, by the principle of universal jurisdiction, to prosecute them even when they take place outside its territory and do not involve its nationals.

In virtually all domestic legal systems, an individual who engages in wrongful conduct causing personal inj ury or death will be subject not only to criminal prosecution, but to a civil action by the injured party. Yet, though the principle of universal jurisdiction is well established in the criminal sphere, it is still regarded as novel in the civil context.

Recent developments—most notably the decision of the United States Supreme Court in Sosa v. Alvarez-Machain—will cause greater examination of the function and scope of universal jurisdiction as authorization for national courts to hear civil claims based on heinous conduct proscribed by international law. We here consider whether a civil dimension of universal jurisdiction has emerged, whether it should correspond to the criminal dimension, and whether its use as a basis of jurisdiction should depend on the absence of effective remedies in jurisdictions with traditional links to the proscribed conduct.

In 2005, the International Court of Justice issued three judgments.l In February, the Court upheld an objection to its jurisdiction in Certain Property (Liechtenstein v. Germany). In July, a chamber of the Court issued its judgment on the merits in Frontier Dispute (Benin/Niger). In December, the full Court issued its judgment on the merits in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).

Sanchez-Llamas v. Oregon, 126 S.Ct. 2669.

United States Supreme Court, June 28, 2006.

In Sanchez-Llamas v. Oregon, a majority of the U.S. Supreme Court held that suppression of evidence is not an appropriate remedy for violations of Article 36 of the Vienna Convention on Consular Relations and that U.S. states may apply their regular procedural default rules to bar claims brought under Article 36. The Court reached the latter conclusion despite contrary reasoning by the International Court of Justice (ICJ).

Article 36(1)(b) of the Vienna Convention provides that when one party country arrests nationals of another party country, it shall inform the foreign nationals without delay that they have the right to have their consulate notified of the arrest, and to communicate with the consulate. Article 36(2) adds that these rights “shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” The United States ratified the Vienna Convention in 1969, along with a protocol to the Convention providing that disputes between nations arising under the treaty could be heard in the ICJ.

On March 8, 2005, the General Assembly of the United Nations adopted a declaration on human cloning (the Declaration) by a recorded vote of 84 to 34, with 37 abstentions.1 The Declaration culminated an effort that had commenced in 2001 with a proposal by France and Germany for a convention against reproductive cloning of human beings. The three-and-ahalf- year negotiation that followed was intense and emotionally charged with religious and cultural overtones; at times, participants seemed to feel hopelessly mired. The Declaration that was ultimately adopted was often referred to as a “political declaration,” apparently as a way of emphasizing the degree of compromise reflected in the text, and also as away of minimizing its normative value. The negotiation, which had originally been understood as limited to the narrow bioethics issue of prohibiting the making of cloned babies, led to profound discussions on human rights, cultural and religious diversities, and their interaction and priorities in case of conflict. Ultimately, neither the Declaration nor its negotiating history answered these difficult questions. But they provided a glimpse of the difficulties and impasses international lawmaking will confront when negotiations lose a secular tone.

The domestic and international legal status of warships and military aircraft submerged in United States waters or in international waters has been quite contentious of late. It has resulted in some notable litigation in U.S. courts, a presidential statement on U.S. policy, official lodgings of positions by foreign governments with the United States, a proposed international convention drafted by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and other developments that have previously received notice in the pages of this Journal. In a somewhat surprising turn, Congress, in October 2004, adopted as part of the National Defense Authorization Act for Fiscal Year 2005 a set of provisions known as the Sunken Military Craft Act (SMCA). This essay briefly traces the trajectory of developments in this sector of international law, analyzes the provisions of the SMCA, and offers a critique of the underlying policy and legal assumptions of that statute in light of those developments.

Hamdan v. Rumsfeld. 126 S.Ct. 2749.

United States Supreme Court, June 29, 2006.

In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions established by President George W. Bush were unauthorized by law and inconsistent with both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. Rejecting jurisdictional challenges to its resolving the legality of the tribunals, the Court found the military commission proceedings against Hamdan to violate the “uniformity” requirement of the UCMJ, under which military commissions must be governed by the same standards as courtsmartial except where impracticable. The Court also found the tribunals to violate the Geneva Conventions as incorporated by Article 21 of the UCMJ, because the commissions did not qualify as “regularly constituted courts” as required under Common Article 3.

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).

Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.

In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.