On April 28, 1983, the Soviet Union became the first maritime country of consequence and the largest sea power signatory to the 1982 United Nations Convention on the Law of the Sea to enact legislation implementing the provisions of that instrument regulating the innocent passage of foreign warships. The stature of the Soviet Union within the framework of the Convention and the policy changes embodied in the 1983 legislation confer a special importance on these new Rules, whose text and interpretation will become a standard emulated by other countries. The present article examines the text of the Rules against the background of previous Soviet legislation, the 1982 Convention and its negotiating history, and the application of the Rules.

At first glance, the question of the customary character of the Geneva Conventions of August 12, 1949 for the Protection of Victims of War might appear academic. After all, the question arises infrequently in view of the universal acceptance of the Conventions as treaties (they are binding on even more states than the Charter of the United Nations). That the matter may have practical importance, however, was recently brought home by its consideration by the International Court of Justice (ICJ) in the merits phase of Military and Paramilitary Activities in and against Nicaragua. Moreover, in numerous countries where customary law is treated as the law of the land but an act of the legislature is required to transform treaties into internal law, the question assumes importance if no such law has been enacted. Failure to enact the necessary legislation cannot affect the international obligations of these countries to implement the Geneva Conventions; but invoking a certain norm as customary rather than conventional in such situations may be crucial for ensuring protection of the individuals concerned.

A hotly debated issue raised in this publication’s October 1986 Agora and, repeatedly, during the drafting of the Restatement of Foreign Relations Law of the United States (Revised) has to do with the relationship between customary international law and federal law in the United States. Most of the debate addressed whether a newly emerged custom would supersede an earlier federal statute or self-executing treaty. The reporters of the Restatement took a strong stand at first, placing custom on the same plane as federal statutes and self-executing treaties: in case of conflict, the latest in time should prevail. Criticism rolled in, and the reporters eventually retreated a bit. The final version says only that since custom and international agreements have equal authority in international law, and both are law of the United States, “arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement.”’

As the chairman of the panel at the 1985 ASIL Annual Meeting on the question “May the President Violate Customary International Law?” I must confess that the issue that originally troubled me when I suggested this topic for discussion remains securely hidden in the shadows of the debate. Yet I think it is of central importance. The reason it has remained obscure, despite its significance, is that it is an extraordinarily difficult intellectual puzzle. My brief purpose here is to bring it into the light, not to try to solve it.

In a recent issue of the Journal, one finds a largely theoretical discussion of a question that potentially implicates quite serious legal policies and consequences: “May the President violate customary international law?” Despite professorial conjecture, the answer to such a question, which can be documented in actual trends in legal decision, emphatically has been no (i.e., the President is bound by and may not lawfully violate international law).

A small 3-day meeting of international lawyers and other experts was convened by the International Institute of Human Rights in Strasbourg, France, in November 1986 to consider the current status of the right to leave any country, including one’s own, and to return to one’s country. The approximately 30 participants were from Costa Rica, Egypt, the Federal Republic of Germany, France, Morocco, the Netherlands, Sweden, Switzerland, the United Kingdom, the United States and Zambia.

In 1983, President Reagan announced the policy of the United States to accept the normative provisions of the 1982 Convention on the Law of the Sea as reflecting the customary international law of the sea (in matters other than deep seabed mining).

This is the second of a two-part report on the UN Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees. The group completed its work in May 1986 when it submitted its report to the Secretary-General for transmittal to the General Assembly. It had held eight sessions in New York, two every spring since April 1983 of mainly 2-week duration each, and had closely followed the Programme of Work adopted at its second session.