In recent years, sovereign debt crises have received much attention from the perspective of international public policy, but an effective legal solution to sovereign defaults has yet to coalesce within international law. Over the last two decades, private creditors have increasingly resorted to litigation in national courts, though without great success, in an effort to obtain payment on defaulted sovereign debt. Another, emerging option is arbitration —in particular, before the International Centre for Settlement of Investment Disputes (ICSID). Will ICSID be the new venue of choice for recovering on sovereign bonds? The conclusion reached here is that attempts to take defaulting countries to ICSID arbitration are unlikely to succeed.

In 1972 a historic attempt to create the world’s first international legal regime banning the development and possession of an entire class of weapons of mass destruction (WMDs) culminated in the conclusion of the Biological Weapons Convention (BWC). Crippled by key compromises made by the great powers in pursuit of various self-interested security objectives in the context of the Cold War, the Convention is fundamentally flawed. Although the BWC purports to oudaw the development and possession of all biological weapons, deadlier and more sophisticated biological weapons than were imaginable in 1972 can now be and have been produced, as evidenced in October 2001 by two letters sent to the Capitol Hill offices of Senators Tom Daschle and Patrick Leahy. These letters reportedly contained direatening notes and a dangerous and sophisticated form of “weapons-grade” anthrax spores. Even though both die sender of these letters and the source of the anthrax remain unknown, the technical sophistication of the spores led some experts to suggest that the attacker was supported by a U.S. “biodefense” laboratory or an advanced foreign-state-run biological weapons (BW) facility because the spores could not have been produced by an amateur working in his basement.

On June 30,2006, Secretary of State Condoleezza Rice rescinded die United States designation of Libya as a state sponsor of terrorism. Her action ended nearly twenty-seven years of Libya’s pariah status in American law and rhetoric.The road to the rehabilitation of Libya was a long one in more than a temporal sense. During the 1980s, the country was widely perceived as the world’s strongest supporter of terrorism.The United States in particular saw Libya under the leadership of Muammar el-Qaddafi as a “rogue state” posing a serious threat to U.S. national security interests.This fear was confirmed by Libya’s destruction of Pan Am Flight 103 in 1988. A bomb placed by Libyan agents on board the aircraft en route to New York detonated over Lockerbie, Scodand, resulting in the deaths of 270 civilians, including 189 Americans. It was perhaps the single worst act of terrorism against the United States until the carnage of September 11, 2001.

Current discourse on international human rights leaves little room for self-satisfaction about near-universal acceptance of wide-ranging normative frameworks with a global and regional scope. Recent times have witnessed growing academic concern with the “impact” or “effect” of international human rights treaties on the de jure and de facto legal position in state parties. These concerns are embedded in bigger and more enduring questions about the nature of state obligations under international law (including those derived from “nonbinding norms”) and compliance with them. However, general questions about obedience to international law have been replaced by attempts to answer the question whether human rights treaties in fact “make a difference.”

This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.

As military commissions have been revived in the wake of the attacks of September 11,2001, interest has grown in the history of the institution. The United States Supreme Court, in Hamdan v. Rumsfeld, sketched out some historical notes and set forth a tripartite division between law-of-war commissions, martial law commissions, and occupation tribunals. Various authors have advanced insights on this history, though most have focused on the prominent episodes, particularly the handful of Supreme Court cases. Even the most comprehensive article gives short shrift to the massive employment of commissions in the Reconstruction era and in postwar Germany. This essay attempts to advance the cause by sketching out the entire scope of the institution’s history and indicating what further research would have to be done to arrive at a truly comprehensive treatment. A basic difficulty is that the work product of military commissions is not encompassed in a series of trial reports like the Federal Supplement or the military’s own Court-Martial Reports. A handful of cases wound up in the Supreme Court and another half dozen stood out enough to attract historians’ interest. Otherwise, commission proceedings are memorialized, if at all, only in military general orders and records of trials that were maintained in the Office of the Judge Advocate General. I have explored the records pertaining to commissions in the Reconstruction period following the Civil War in anticipation of writing a comprehensive article. It is a difficult and time-consuming task. To complete the picture, similar pick-and-shovel work would have to be done on such extensive use of the commission as occurred in Germany after World War II. Both the Civil War-Reconstruction period and the German occupation produced thousands of trials.

Many commentators argued that a central problem with the government’s actions after the attacks of September 11, 2001, was executive unilateralism. For example, in criticizing President George W. Bush’s initial effort to establish military commissions to try terrorists, Professors Neal Katyal and Laurence Tribe argued that, “in the absence of an emergency that threatens truly irreparable damage to the nation or its Constitution, that Constitution’s text, structure, and logic demand approval by Congress if life, liberty, or property are to be significantly curtailed or abridged.” These commentators therefore invited the courts to play a “democracy-forcing” role to prompt greater congressional participation, through, in particular, the application of “clear statement” requirements. In Hamdan v. Rumsfeld, the Supreme Court accepted this invitation. In holding that the military commission system that President Bush had established to try terrorist detainees was invalid, the Court relied on what it believed to be restrictions in the Uniform Code of Militaryjustice (U.C.M.J.), a statute that is of course subject to amendment by Congress. Thus, as Justice Stephen Breyer and other Justices noted in a concurrence, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.

There are many important aspects to the 2006 Military Commissions Act, most of which are covered in the contributions of others to this Agora. I will focus on the amendments made by the Act to the earlier War Crimes Act, which set forth criminal sanctions for various violations of international humanitarian law. These amendments, which were ostensibly designed to remove ambiguities in the existing law, have the effect of raising questions about United States implementation of the 1949 Geneva Conventions that need to be resolved by the executive branch or, if necessary, by further action of Congress.

To know where we are, we have to see ourselves from a distance. Otherwise the remarkable becomes commonplace.

I see the Military Commissions Act of 2006 from a temporal distance, specifically from the era of state-terror regimes in Latin America during which I served for eight years (1976 -1983) as a member of the Inter-American Commission on Human Rights, a principal arm of the Organization of American States (OAS). Those were the years in which governments scattered across the South American continent and the Central American isthmus, anticipating the policy views announced by United States Vice President Dick Cheney in an interview on “Meet the Press” in 2001, decided to go to what Cheney called the “dark side,” or, in the case of those who had long made that side their principal area of operations, decided to move a larger proportion of their respective peoples into it. Throughout the period, reports about the hell on earth my six colleagues and I exposed (in the somewhat stilted idiom official agents are driven to adopt) would appear episodically in the American press. Their implicit subtext was that these horrors were perpetrated by brutes as alien to American life as the venues where they operated.

Over five years have passed since President George W. Bush issued the much-criticized order making an obscure device, military commissions, the primary tool for the United States to bring accused Qaeda terrorists to justice. Some legal scholars suggested in the wake of the issuance of that order that military commissions were the only practicable method available to address many of the problems presented by the trial of accused terrorists in civilian U.S. courts. True or not, it is clear that the decision to approach the problem of terrorists primarily in terms of war rather than crime continues to have far-reaching legal consequences. Following the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that the military commissions designed by the Bush administration were inconsistent with the requirements of both the Uniform Code of Military Justice (U.C.M.J.) and the law of war as incorporated in that statute, the U.S. Congress attempted to fashion a compliant charter for these commissions through the Military Commissions Act of 2006 (MCA).

The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations. The United Nations first attempted to establish binding international rules to govern the activities of transnationals in the 1970s. That endeavor was initiated by developing countries as part of a broader regulatory program with redistributive aims known as the New International Economic Order. Human rights did not feature in this initiative. The Soviet bloc supported it while most industrialized countries were opposed. Negotiations ground to a halt after more than a decade, though they were not formally abandoned until 1992.

The Military Commissions Act of 2006 (MCA) was precipitated by several of the United States Supreme Court’s holdings in Hamdan v. Rumsfeld. First, the administration perceived the need to respond to the Court’s invalidation of the military commissions established pursuant to the president’s Military Order of November 13,2001, as contrary to Congress’s stipulation that such tribunals conform to the laws of war. In addition, the Court’s holding that common Article 3 of the Geneva Conventions applies to the conflict with Al Qaeda carried important implications for other national security policies. Most important, the Court’s interpretation of the scope of common Article 3 imperiled the president’s program for the interrogation of Qaeda detainees because that article prohibits cruel and degrading treatment and violating it was a criminal offense under the War Crimes Act.

Diplomatic Claims (Eritrea v. Ethiopia), Eritrea's Claim 20/Ethiopia's Claim 8, Partial Awards. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Economic Loss Throughout Ethiopia (Ethiopia v. Eritrea), Ethiopia's Claim 7, Partial Award. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Jus ad Bellum (Ethiopia v. Eritrea), Ethiopia's Claims 1–8, Partial Award. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Loss of Property in Ethiopia Owned by Non-Residents (Eritrea v. Ethiopia), Eritrea's Claim 24, Partial Award. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Pensions (Eritrea v. Ethiopia), Eritrea's Claims 15, 19 & 23, Final Award. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Ports (Ethiopia v. Eritrea), Ethiopia's Claim 6, Final AwardS At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Western & Eastern Fronts (Ethiopia v. Eritrea), Ethiopia's Claims 1 & 3, Partial Award. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

Western Front, Aerial Bombardment & Related Claims (Eritrea v. Ethiopia), Eritrea's Claims 1, 3, 5, 9–13,14, 21, 25 & 26, Partial Award. At <http://www.pca-cpa.org>.

Eritrea Ethiopia Claims Commission, December 19, 2005.

On December 19, 2005, the Eritrea Ethiopia Claims Commission (Commission) issued seven partial awards and two final awards. These awards determined the respective international responsibility of Eritrea and Ethiopia arising out of the 1998–2000 armed conflict between those two states.